^ 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


I    PARTIES   TO   ACTIONS. 


THE    LAW  ^^. 

KESPEcrnro 


P^OITIES  TO  ACTIONS, 


LEGAL   AND  EQUITABLZ. 


EOKACE  HA^Wi:S, 

COUNSELLOB  AT  LaW. 


SAX  FEANCISCO: 

SUiilKER   AVHITXEY   &   CO. 

1881. 


Copyright  1884, 
By  Horace  Hawes. 


^ 

^ 


PEEFACE. 


The  author  has  endeavored  in  this  work  to  give  the  gist  of 
the  decisions  of  the  courts  of  this  country  upon  the  subject  of 
Parties  to  Actions,  as  concisely  as  consistent  with  a  full  pre- 
sentation of  the  points  decided,  and  by  arrangement  of  the  sub- 
ject-matter and  index,  to  place  this  information  at  the  "finger 
tips  "  of  the  busy  lawyer ;  designing  the  work  for  the  desk  of 
the  practioner,  rather  than  for  the  shelf  of  the  scholar.  To 
this  end  he  submits  the  result  of  his  labors  to  a  candid  pro- 
fession, trusting  that,  in  a  measure,  his  desires  have  been 
accomplished. 

HOKACE   HAWES. 

San  Fkancisco,  August,  1883. 


CONTEXTS. 


CHAPTER  I. 

PARTIES,   THEIR  RIGHTS  AXD  RE2IEDIES. 

g  1.    Who  are  parties. 

§  2.    Real  and  nominal  parties, 

1  3.    Of  the  name  of  the  party. 

§  4.  Of  the  description,  personal  capacity,  etc. 

§  5.  Who  may  become  parties. 

2  6.  Of  the  position  of  a  party  upon  the  record, 
2  7.  Who  are  bound  by  legal  proceedings 

§  8.    Of  the  rights  of  parlies  to  a  suit. 

2  9.    Generally  of  the  remedies  of  a  party. 


CHAPTER  n. 

JURISDICTION. 

?  10.  Definition,  etc. 

§  11.  How  acquired. 

2  12.  By  attachment  — Publication. 

2  13.  By  publication. 

2  14.  Of  appearance. 

2  15.  Who  may  appear,  and  how  he  may  appear. 

2  16.  Effect  of  appearance. 

2  17.  Withdrawal  of  appearance. 


CHAPTER  in. 

NECESSARY  JlSD  PROPER  PARTIES. 

2  18.    What  persons  should  be  made  parties  to  an  action 
2  19.    Exception  to  the  general  rule. 


viii  coNTE^'TS. 

{  20.  Who  are  not  necessary  parties  to  a  suit. 

I  21.  To  estates  of  the  insane,  minors,  married  women. 

1  22.  To  the  estates  of  decedents. 
5  23.  To  trust  estates. 

§  24.  In  suits  by  creditors,  assi(?nees,  sureties. 

?  25.  In  suits  by  co-partners'  corporations. 

?  26.  In  suits  relating  to  land  and  land  titles. 

2  27.  In  suits  to  enforce  liens. 

i  28.  In  bills  to  redeem,  for  partition,  Injunction. 


CHAPTER  IV. 

ALIENS,   XON-EESIDENTS,    INDIANS,    TRl'STEES,   ASSIGNEES,   ETC. 

i  29.  Aliens,  non-residents,  and  Indians. 

g  30.  To  enforce  a  public  right. 

i  .31.  Generally  in  actions  upon  contracts. 

§  .32.  Trustees,  actions  by. 

§  33.  Trustees,  actions  against. 

§  34.  Assignor  and  assignee,  actions  by. 

?  3.5.  Same  continued  —  Actions  upon  promissory  not 

§  .36.  Contracts  under  seal,  bonds,  covenants,  etc. 

?  37.  Contracts  made  for  the  benefit  of  third  persons. 

2  38.  Generally  iu  actions  for  torts. 


CHAPTER  Y. 

STATES,    COUNTIES,    CITIES,   ANT)  TOVTSS. 

i  .39.  States,  their  rights  to  sua. 

2  40.  States,  suits  against. 

2  41.  Counties,  suits  by. 

{  42.  Counties,  suits  against. 

§  43.  CitieS:  suits  by. 

I  44.  Cities,  suits  against, 

J  45.  Towns,  suits  by. 

§  4G.  Towns,  suits  against. 


COXTZXTS.  IS- 

CHAPTLR   VI. 

PUBLIC   OFFICKBS. 

?  47.  Generally  suits  by  and  against. 

?  48.  Governor,  attorney-general,  suits  by  and  against. 

I  49.  Judicial  officers,  suits  by  and  against. 

I  50.  Treasurer,  suits  by  and  against. 

I  51.  Sheriff,  suits  by  and  against. 

{  52.  Receivers,  suits  by  and  against. 


CHAPTER  Yn. 

BA>-KKrPTS  AXD   rN'SOLYES'TS. 

?  53.    Bankrupts,  actions  relating  to  estates  of. 

?  M.    Bankrupts  continued. 

I  55.    Insolvents,  actions  relating  to  estates  of. 


CHAPTER  Till. 

INFANTS,   ES'SA>-E  PEPvSOXS,   IDIOTS. 

5  56.  Infants,  suits  by. 

I  57.  Infants,  suits  by,  continued. 

§  58.  Infants,  suits  against. 

?  59.  Infants,  suits  against,  continued. 

5  60.  Infants,  suits  against,  judgment,  etc. 

5  61.  Insane  persons,  idiots,  etc.,  suits  by. 

?  62.  Insane  persons,  idiots,  etc.,  suits  against. 


CHAPTER   IX. 

HUSBAND  AND  ^VITE. 

?  63.  Husband  and  wife  generally,  suits  bj'. 

I  64.  Suits  upon  contracts. 

I  65.  Suits  for  torts  to  the  wife. 

I  66.  Suits  relating  to  the  separate  property  of  the  -n-ife. 


X  CONTESTS. 

?  67.    Suits  between  hiisbnnd  and  wife. 

}  68.    Suits  aealiist  husband  an<l  wife. 

{  69.    Same  continued,  separate  defense  of  wife,  suits  relating  to 

land,  etc. 
}  70.    Suite  for  torts  committed  by  husband  or  wife. 


CHAPTER  X. 

EXECUTOES  AND   ADillNISTBATORS, 

?  71.  Generally,  suits  by  an  administrator  or  executor. 

?  72.  Generally  for  debts  or  other  property  due  the  estate. 

J  73.  Suits  relating  to  the  lands  of  the  decedent. 

?  74.  Generally,  suits  against  an  administrator  or  executor. 

J  75.  Generally  for  debts  or  property  due  from  the  estate. 

?  76.  Generally  costs,  suits  relating  to  real  property  of  the  estate 

?  77.  Personal  claims  and  liabilities  of  the  administrator. 

2  78.  Suits  by  or  against  heirs,  devisees,  legatees,  etc. 


CHAPTER  XL 

LANDLORD  AND  TENANT,  JOINT  TENANTS,  AND  TENANTS  IN  COIOI 

?  79.  Landlord  and  tenant,  suits  by. 

{  80.  Landlord  and  tenant,  suits  against. 

?  81.  Joint  tenants,  tenants  in  common,  suits  relating  lo  persona 

{  82.  Same  continued,  suits  relating  to  real  property. 


CHAPTER  XII. 

MA8TEB    ANT)    SERVANT,    PRINCIPAL    AND   AGENT,    PRINCIPAL   I 
SURETY,   BAILOR  AND  BAILEE. 

§  83.  Master  and  servant,  suits  by  and  against. 

?  84.  Principal  and  agent,  suits  by. 

?  85.  Same  continued,  suits  against. 

?  86.  Principal  and  surety,  suits  by  and  against. 

{  87.  Bailor  and  bailee,  suits  by  and  against. 


CONTENTS. 


CHAPTER  XIII. 

.rsrEESHIPS,     COEPOEATIOXS,    I3IXC0KP0EATKD  ASSOCIATIONS, 
ETC. 

J  88.  Partners,  suits  by. 

I  89.  Partners,  suits  against. 

I  90.  Corporations,  suits  by. 

?  91.  Corporations,  suits  against. 

I  92.  rnincorporated  associations,  suits  by  and  agaius.;. 

I  93.  Stockholders,  suits  by  and  against. 

CHAPTEE  XIY. 

OF   THE   JOrSDEK   OF   PAKTIES. 

}  M.  Who  may  be  joined  as  plaintiffs  in  actions  upon  contracts  at 

law. 

I  95.  Same,  in  actions  for  torts. 

I  96.  Same,  in  suits  in  equity. 

?  97.  Who  may  be  joined  as  defendants  in  actions  upon  contract. 

J  98.  Same,  in  actions  for  torts. 

J  99.  Same,  in  suits  in  equity. 

CHAPTER  XT. 

OF   THE  3nSJ0rNT)EE  AN'D  X0X-J01>-DEB  OF  PAETIES,  AilENDSrENT 
AJSD   >-EW   PAETIES. 

5  100.    Misjoinder  and  non-joinder,  how  the  defect  may  be  taken 

advantage  of. 
>  101.    Who  may  take  advantage  of  a  defect  of  parties. 
;  102.    Generally  of  defect  of  parties  plaintiff,  of  amendment. 
'  103.    Generally  of  defect  of  parties  defendant,  of  amendment. 
!'  104.    Generally  of  new  parties. 

CHAPTER  XYI. 

ABATEMENT,   EEVITOE,   ETC. 

10.5.    Generally  of  abatement. 
106.    Of  the  substitution  of  parties. 


§  1C7.    Changeof  interest  after  suit  commenced,  before  judgment. 
}  108.    Change  of  interest  after  judgment  and  pending  appeal. 


CHAPTER  XVII. 

INTERVENTION. 

1  109.    Generally  of  intervention. 

?  110.    Of  the  interest  necessary  to  entitle  a  person  to  intervene. 

2  111.    Of  the  rights  of  intervenors. 


CHAPTER  XTIII. 

INTERPLEADER. 

2  112.  Definition  and  nature  of  interpleader. 

2  113.  When  a  bill  of  interpleader  may  be  maintained. 

2  114.  Who  may  file  a  bill  of  interpleader. 

2  115.  Effect  of  interpleader. 


PARTIES   TO  AX  ACTIOX. 


CHAPTER  I. 

PARTIES,    THEIR   RIGHTS  AXD  EEiCEDIES. 

2  1.  "Who  are  parties. 

?  2.  Real  and  nominal  parties. 

?  3.  Of  the  name  of  the  party. 

?  4.  Of  the  description,  personal  capacity,  etc. 

§  5.  Who  may  become  parties. 

§  G.  Of  the  position  of  a  party  upon  the  record. 

I  7.  Who  are  bound  by  legal  proceedings. 

?  8.  Of  the  rights  of  parties  to  a  suit. 

I  9.  Generally  of  the  remedies  of  a  partyl 

§  1.  Who  are  parties. —  As  a  rule,  those  persons  only  are 
parties  ■who  have  been  made  such  in  the  manner  provided  by- 
law;^ who  are  interested  in  the  subject-matter  of  the  suit,  and 
have  a  right  to  make  a  defense,  control  the  proceedings, 
appeal,  etc.^  The  t.rm  "party,"  as  used  in  the  statute,  re- 
quiring the  coroner  to  execute  within  his  county  all  writs,  etc., 
in  which  the  sheriff  thereof  or  his  deputy  is  a  party,  means  the 
person  who  is  expressly  named  in  the  reeord  as  plaintiff  or 
defendant.-*  A  person  whose  name  appears  in  the  body  of  the 
petition  as  the  one  for  whom  relief  is  asked,  and  wliose  name 
is  set  out  in  the  caption,  is  virtually  party  plaintiff. ■*  The 
capacity  in  which  he  sues  must  distinctly  appear.  To  prose- 
cute as  A.  B.,  or  School  District  No.  i5,  is  improper;^  so  to 
name  him  in  the  caption  is  not  enough ;  the  stating  part  of  the 
bill  ought  to  show  his  rights,  and  by  whom  he  has  been  in- 
jured ;  the  persons  mentioned  as  the  authors  the  wrong  are 
not  made  parties,  unless  process  of  subpoena  or  publication  ia 
Parties  -  2 


g    1  RIGHTS  AyT>  REMEDIES.  li 

prayed  against  thein;"^  nor  are  they  obliged  to  notice  a  plead- 
ing until  tlit'V  have  been  served  with  process,  or  have  entered 
an  appLarance.^  If  neither  sued  nor  process  prayed  against 
them  thtir  voluntary  appearance  in  the  suit  would  not  make  them 
parties  ;  ^  nor  would  service  of  process  upon  them  be  sufficient 
to  make  them  so,"  even  though  they  were  named  as  defendants 
if  they  were  not  required  to  appear.^"  An  action  against  the 
owners  of  a  boat,  without  naming  them  and  serving  them  with 
process,  will  not  render  them  liable  as  defendants,^!  but  if  they 
appear  and  submit  to  the  jurisdiction  of  the  court  the  plaintiff 
may  be  permitted  to  amend  by  naming  them.^^  Jq  Xew  York 
none  arc  defendants  in  a  chancery  suit,  unless  process  is  prayed 
against  them,  or  they  are  specifically  named  and  described  as 
Bucli ;  '^  so  when  a  necessary  party  is  not  named  in  the  bill  the 
mere  fact  that  an  answer  was  filed  for  him  by  a  guardian  ad 
lUe]n  does  not  make  him  a  defendant ;  i*  but  if  his  name  appears 
in  the  body  of  the  petition,  and  he  is  recognized  and  treated  as 
a  party,  the  mere  omission  to  write  his  name  at  the  head  of  the 
petition  will  not  render  tlic  judgment  a  nullity.^^  Appearing 
upon  the  record  as  agent,  guardian  ad  litem,  etc.,  does  not 
make  one  a  legal  party  further  than  the  extent  of  his  interest 
in  sucli  eapacity.''*  One  who  executes  a  bond  required  by  the 
Code  of  a  claimant  of  attached  property  does  not  thereby  make 
liimself  a  party;  nor  can  judgment  be  rendered  against  him  in 
the  suit  withotit  rule  or  notice.'^  The  United  States  will  be 
recogniztd  as  a  party  plaintiff  only  when  the  record  shows  that 
it  appears  by  tlie  district  attorney  of  the  district  in  which  the 
suit  is  prosecuted.' **  When  a  husband  joins  with  the  wife  in 
the  prosecution  of  an  appeal,  he  thereby  makes  himself  a  party 
to  the  suit,  as  to  any  further  proceedings ;  ^^  but  the  fact  that 
the  wife  joins  the  husband  in  a  motion  to  sot  aside  a  sale  of  the 
homestead  made  upon  execution  issued  on  a  judgment  against 
him  alone  will  not  make  her  a  party  to  the  suit. 2"  The  relator 
in  an  information  by  the  attorney-general  to  enforce  and  in- 
quire into  a  public  charity  fund  is  not  properly  a  party.  It 
sometimes  happens  that  he  has  an  interest  in  the  matter  in  dis- 
pute of  the  injury  to  which  he  has  a  right  to  complain ;  in  that 


15  EIGHTS  AND  KEMEDLES.  §  1 

case  his  personal  complaint  is  joined  to  and  incorporated  with 
the  information  and  bill,  and  it  is  so  termed ;  but  unless  this  is 
done  he  is  not  a  party. ^^  The  widow  and  next  of  kin  are  parties 
to  a  probate  proceeding  only  when  they  participate  in  the  con- 
testatio  litis,  or  are  formally  made  parties.'^-  In  case  of  a  gen- 
eral creditor's  suit,  or  where  there  is  a  fund  in  court,  and  there 
is  an  order  for  creditors  to  come  in  and  assert  their  rights,  and 
participate  in  the  distribution,  in  such  and  like  cases,  the  fact 
that  a  x>erson  appears  and  files  his  claim  raises  the  persumption 
that  he  intends  to  make  himself  a  party  to  the  record. --^  Where 
it  appears  that  pending  an  action  at  law  defendants  pleaded  the 
transfer  of  the  note  sued  on  to  A.  and  B.,  to  which  it  was 
replied  that  the  suit  was  prosecuted  for  theii-  use,  and  judgment 
was  entered  for  plaintiff,  this  did  not  make  A.  and  B.  parties. 2* 
So  when  the  Code  provides  that  an  action  shall  not  abate  by 
reason  of  the  transfer  of  an  interest  therein,  and  that  the  orig- 
inal party  may  prosecute  it  to  judgment  in  his  own  name,  the 
vendee  is  no  party  to  the  suit.^^  When  the  principal  of  a  bond 
binds  himself  to  perform  the  order  of  the  court,  his  sureties  by 
executing  the  bond  become  quasi  parties  to  the  record,  and 
may  be  proceeded  against  by  rule. 26  So  where  relator  had 
been  appointed  administrator,  assumed  the  trust,  received  and 
held  a  portion  of  the  fund  which  had  been  taken  out  of  court, 
had  filed  a  bill  to  be  allowed  in  his  character  of  administrator 
to  enforce  the  very  decree  under  which  the  fund  had  been  paid 
in,  he  had  such  a  standing  in  court  as  to  be  deemed  quasi  a 
party.  2' 

1  Robinson  v.  Commrs.  37  Tnd.  333 ;  ^Tanion  v.  Lambert,  10  Bush, 
295 ;  Hunt  v.  Haven,  52  X.  H.  170. 

2  Robbins  v.  Chicago,  4  Wall.  672 ;  Lipscomb  v.  Postell ,  .^S  Miss.  439 ; 
and  see  ^  7. 

3  Douglass  V.  Gardner,  63  Me.  464 ;  Merchants'  Bank  v.  Cook,  4 
Pick.  410. 

4  Xeely  v.  Merritt,  9  Bush,  350. 

5  Armstrong  v.  Durlaud,  11  Kan.  15. 

6  Archibald  ?•.  Means.  5  Ired.  Eq.  532 :  Potter  v.  Everett.  7  Ired. 
Eq.  1.55:  Borduvant  v.  Siblej*.  37  Ala.  571;  and  see  Soule  v.  BiJliugs, 
42  Cal.  2S7. 

7  Johnson  v.  Morrison,  5  Men.  B.  lOS;  Smith  v.  Gower,  3  Met. 
(Ky.)  175. 


2  li  RIGirrS  ANT>  REMEDIES.  16 

8    Plummer  r.  C'rain,  5  Mon.  377. 
0    ({atewood  v.  Riickor,  1  Mon.  21, 

10  Kellen  v.  Comptoii,  M)  (in.  118  ;  Barnes  v.  Wise,  3  Mon.  17. 

11  Kountz  r.  Brown.  10  Mon.  B.  585;  Rake  r.  Owners  Potomac,  G 
Bnsh,26. 

12  Rake  r.  Owners  Potomac,  G  Bush,  26. 

13  Verplank  v.  Mercantile  Ins.  Co.  2  P;u2ro,  -1-10:  .Seeley  v.  Clark, 
78  N.  y.  221  :  Boorman  r.  A.  A  P.  liy.  Co.  7.s  N.  V.  (m. 

14  Dixon  V.  Donaldson,  G  Marsh.  J.  J.  57G. 

15  Rtnille  v.  Claxon,  12  Bush,  HtVl ;  and  see  Rosenthal  r.  Sutton,  31 
Ohio  .St.  40(i ;  Schwein  r.  Simms,  2  Met.  (Ky.i  210. 

10    Kennedy  r.  Meredith,  -1  Mon.  412  ;  M.  &  fet.  Louis  P.  Co.  v.  Grey, 
9  Bush,  148. 

17  Tavlor  r.  Tavlor,  3  Bush,  119;  and  see  Lindner  r.  Brock,  40 
Mich.  018. 

18  U.  S.  r.  Doughty,  7  Blatchf.  424. 

19  Allen  r.  Lenoir,  53  Mi.ss.  XiO. 

20  Ciahen  r.  .Stephenson,  17  Kan.  617. 

21  Atty.-Oen.  v.  Parker,  126  Mass.  221, 

22  Cieniens  r.  Patterson.  :iS  .Via.  722. 

23  Thomas  v.  Farmers'  Bank,  46  Md,  43. 

24  Peck  V.  Ingraham,  6  Cush.  246. 

25  Elliot  V.  Teal,  5  Sawy.  188  ;  French  v.  Edwards,  4  .Sawy.  128, 

26  Dickinson  r.  Trout,  8  Bush.  443. 

27  Dennis  ?\  Judge  of  Kent  Co.  42  Mich.  254. 


§  2.  Real  and  nominal  parties.  —  When  an  action  is  Li-ouglit 
by  A.,  for  the  use  of  B.,  against  X,,  A,  is  the  nominal  and  B. 
the  real  plaintiff.  X.,  the  defendant,  may  urge  any  defense  he 
may  liave  against  either.^  If,  however,  it  is  shown  that  B.  had 
no  interest  in  the  cause  of  action  before  suit  brought,  A.  will 
be  considered  the  real  plaintiff,  and  may  control  or  dismiss  the 
action  without  the  sanction  of  B.^  At  law  the  beneficial  jjlaint- 
iff  need  not  be  named  in  the  record;-'  but  if  the  fact  that  the 
action  is  prosecuted  for  the  use  of  a  third  person  is  expressed, 
and  he  be  named,  it  is  merely  surplusage.*  A  bill  in  chancery 
must  not  be  filed  in  the  name  of  one  to  the  use  of  another,  but 
in  the  name  of  the  real  person  in  interest,  who  will  be  the  real 
plaintiff.^  When  the  person  beneficially  interested  is  permitted 
to  u.se  the  name  of  another  in  the  prosecution  of  an  action,  he 
is  the  party  wlio  is  liable  for  costs  ;<>  the  nominal  plaintifi"  will 
not  be  permitted  to  control  the  action.^    It  seems,  however, 


17  KIGirrS  A>'D  EEilEDIES.  ^  2 

that  lie  may  withdraw  it,  even  against  the  wishes  of  the  real 
person  in  interest;**  he  cannot  settle  or  compromise  it,"  nor 
can  he  enter  a  retraxit  therein.^"  A  next  friend  of  an  infant 
can  only  pursue  and  claim  his  rights,  he  cannot  cede  or  yield 
them  to  others ;  and  the  same  is  true  of  an  attorney.^!  In 
actions  against  husband  and  wife  jointly  for  her  separate  liabil- 
ity, he  is  merely  a  nominal  party,  joined  for  the  purpose  of 
assisting  her  in  the  protection  of  her  interest ;  ^-  and  in  the 
absence  of  any  undertaking  on  his  part,  judgment  cannot  be 
rendered  against  him.^^  When  a  bill  of  discovery  is  filed  by 
one  member  of  a  firm  for  the  use  of  another,  upon  an  open 
account,  it  is  not  demurrable  simply  because  filed  by  a  nominal 
party.i*  Such  bill  may  also  be  filed  against  him.^^  In  an 
action  upon  a  guardian's  bond  the  relator  stands  as  the  real 
plaintiff.  ^'^  In  an  action  on  a  s^Decial  tax  bill  for  street  improve- 
ments brought  by  a  contractor  to  the  use  of  a  municipal  cor- 
poration, the  city  is  not  the  real  party  to  the  record,  and  no 
judgment  can  be  rendered  against  it  in  such  action.^^  Pay- 
ment of  the  amount  of  the  judgment  to  the  nominal  plaintiff, 
with  notice  that  he  is  not  the  real  party  in  interest,  will  not 
satisfy  it.^** 

1  Dayton  v.  Conil.  Bank,  6  Rob.  i  La.)  19  ;  G.  G.  Ry.  Co.  r.  Conger, 
9  Smecl&s  <fc  M.  509  ;  Ward  v.  Martin,  3  3Ion.  19. 

2  Moore  V.  Bres,  19  La.  An.  0-32 ;  and  see  Bingham  v.  Calvert,  13 
Ark.  401. 

3  Am.  Exp.  Co.  V.  Haggard,  37  111.  472 ;  Pearce   v.  Twitchell,  41 
MLss.  .^6. 

4  Lee  v.  Gardiner,  26  Miss.  .541 ;  M.  R.  Co.  r.  WUcox,  48  Pa.  St.  167. 

5  Kitchins  v.  Harrall,  54  Miss.  474  ;  Elder  v.  Jones,  35  III.  384 ;  but 
see  Minor  v.  Gaw,  11  Smedes  &  M.  322. 

6  State  1-.  Layman,  46  Md.  190 ;  Buckmaster  v.  Beames,  3  Gilm.  97. 

7  Eckford  v.  Hogan,  44  Miss.  404. 

8  Fitch  V.  Boardman,  12  Conn.  349;  but  see  C.  R.  I.  &  P.  Ry.  v. 
Kennedy,  70  111.  3.50. 

9  Emmons  v.  Myers,  7  How.  375. 

10  Sloan  V.  Sommers,  14  X.  J.  L.  510. 

11  C.  R.  T.  &  P.  B-y.  V.  Kennedy,  70  III.  a50. 

12  TravLs  v.  Willis,  55  Miss.  566  ;  Ross  v.  Liude*-,  12  S.  C.  593. 

13  Mhoon  r.  Colment,  51  Miss.  64. 

14  Minor  v.  Gaw,  11  Smedes  <fc  M.  322. 

15  Watts  r.  Smith.  24  Miss.  77. 


^    3  RIGHTS   AND   REMEDIES.  18 

16  Montgomery  r.  Commonw.  1  Mon.  197. 

17  City  V.  Clpnient,  4!)  Mo.  552. 

18  Thutc)K'r  r.  Itofkwell,  4  Colo.  -KM  ;  Triplett  v.  Scott,  12  111.  lo7. 

§  3.  Of  tlie  name  of  the  party.  — In  every  civil  action  the 
names  of  the  parties,  -whether  natural  or  artificial,  must  be  set 
out  in  tlie  record,  the  omission  to  do  so  cannot  he  cured  by 
aiuendment;^  their  rights  should  be  vindicated  in  their  own 
names  and  in  their  own  persons. ^  At  common  law  a  person 
may  change  his  name,  he  is  bound  by  any  contract  he  may  make 
in  his  reputed  name,  and  by  his  known  and  recognized  name 
he  may  sue  and  be  sued.^  The  fact  that  the  parties  in  interest 
are  technically  idiots,  lunatics,  or  infants  does  not  change  the 
rule,  and  the  better  practice  is  to  add  the  name  of  their  guar- 
dian;  as.  A.,  an  insane  person,  by  his  giiardian,  B.,  etc.*  The 
letters  "Jr."  are  no  part  of  a  name,  and  when  used  in  the  plead- 
ings and  not  in  the  judgment  the  omission  will  not  be  error  if 
the  recital  therein  is  that  "said  plaintiif  do  have,"  etc.^  Tho 
law  knows  but  one  Christian  name,  and  the  omission  or  incor- 
rect insertion  of  a  middle  name  or  initial  is  immaterial;^  the 
full  Christian  name  should  ha  given  unless  excused  by  aver- 
ment; the  use  of  an  initial  is  not  sutficient.^  An  exception 
exists,  however,  in  case  of  bills  of  exchange,  etc.,  in  which  the 
initial  or  a  contraction  of  the  Christian  name  is  used."  In 
absence  of  proof,  the  names  May  and  Mary  will  not  be  consid- 
ered the  same,  but  must  be  held  to  signify  two  different  per- 
sons.'' It  has  been  held,  however,  that  suit  was  not  void  though 
plaintiff  was  described  as  Neal  Carter,  his  name  being  John 
^'eal  Carter,  and  he  was  usually  called  John  and  only  occasion- 
ally Neal,  even  though  his  father  was  called  Neal  Carter,  if  at 
the  commencement  of  the  action  he  was  dead,  and  it  was  shown 
that  plaintiff  was  the  real  party  in  interest.'"  A  writ  will  not 
abato  merely  because  the  name  of  a  party  is  spelt  differently 
therein  from  the  manner  in  which  he  sp'^lls  it,  jMovidtd  it  has 
the  same  sound.' ^  TVhen  misnomer  is  alleged,  the  party  alleg- 
ing it  must  prove  tho  true  name  ;  that  being  done,  amendment 
should  be  allowed  iustante)' ;'^'^  by  pleading  the  general  issue 
the  error  is  waived.'^    A  writ  describing  a  person  as  Charity 


19  EIGHTS  XST>  EE3IED1ES.  §  3 

Griffin  —  to  wit,  Charity  Piukham  —  may  be  amended  by 
striking  out  the  words,  to  wit.,  "Charity  Pinkham."^^  The 
fact  that  the  surname  only  of  a  defendant  is  set  forth  in  the 
complaint  cannot  be  reached  by  demurrer  for  want  of  facts, 
nor  can  it  be  made  available  for  any  purpose  after  a  finding 
and  judgment  below,  under  an  assignment  for  the  first  time  in 
this  court  of  the  insufficiency  of  the  facts  stated  in  the  com- 
plaint to  constitute  a  cause  of  action. ^^  "When  a  contract  is 
made  for  the  benefit  of  a  principal  who  is  undisclosed,  suit  may 
be  brought  by  either  principal  or  agent. i^  A  city  may  institute 
suit  in  its  corporate  name,  and  plaintiff  suing  as  the  City  of  L. 
may  recover  upon  a  bond  given  to  the  inhabitants  of  L.,  that  fact 
being  averred,'^  the  same  rule  applies  to  other  corporations.^** 
"Where  pending  suit  by  a  corporation,  an  act  of  the  legislature 
was  passed  changing  its  name,  if  the  corporators  should  con- 
sent ;  held  too  late  after  judgment,  for  defendant  to  set  up  that 
there  was  no  such  corporation,  particularly  as  it  did  not  appear 
that  consent  to  take  the  new  name  was  given.  ^^  When  one 
stockholder  sues  for  liimself  and  all  others  who  may  become 
parties,  etc.,  the  interlineation  of  the  names  of  those  who  do 
come  in  and  are  made  parties  is  not  necessary.  The  record 
should  show  that  the  suit  was  brought  for  all  stockholdsrs  who 
should  come  in,  also  who  did  come  in  and  were  made  parties ; 
this  is  all  that  is  required.  2" 

1  Props.  Mex.  :Mill  v.  Y.  J.  S.  M.  Co.  4  Xev,  42 ;  and  see  Fuller  v. 
Unknown  Owners,  9  Iowa,  432. 

2  Shadburne   r.  Amonette,  7  La.  An.  90;  Brooks  v.  Hartman,  1 
Heisk.  'SS  ;  and  see  Arbuckle  v.  Bowman,  6  Iowa,  70. 

3  Linton  r.  First  Xat.  Bank  of  Kittanning,  13  The  Reporter,  488. 

4  Lang  v.  Whidden,  2  2s .  H.  437  ;  Fox  r.  Xinor,  32  Cal.  119. 

5  Loveland  v.  Sears,  1  Colo.  435. 

6  Doane  v.  Glenn,  1  Colo.  502  ;  Dilts  r.  Kinney,  15  X.  J.  L.  130. 

7  Wiebold  v.  Hermann,  2  Mont.  610 ;  Elberson  r.   Ptichards,  42 
2s .  J.  L.  70. 

8  Elberson  v.  Richards,  42  2s .  J.  L.  70 ;  B.  <£;  M.  Ry.  Co.  v.  Dick,  7 
2s  eb.  244. 

9  Kennedy  r.  Merriam,  70  lU.  230 ;  but  see  Kerr  r.  Swallow,  33 
lU.  380. 

10  Jernigan  v.  Carter,  60  Ga.  132. 

11  Tibbets  v.  Kiah,  2  X.  H.  557  ;  Colton  v.  Stamwood,  67  3Ie.  26. 

12  Dou£:herty  i-.  Vance.  30  La.  An.  1246. 


g  4  EIGHTS  Xyj)  EEMEDIES.  20 

13  Davis  V.  Taylor,  41  111.  408 ;  Lehman  v.  Warner,  Gl  Ala.  402. 

14  (iriffln  v.  Pinkhani,  fiO  Me.  123. 

15  Hahn  v.  Behrman,  73  Ind.  123. 

16  Laphorn  v.  Green,  9  Vt.  408. 

17  Lowell  V.  Morse,  42  Mass.  474 ;  Ilatheway  v.  Sackett,  32  Mich.  97 ; 
but  see  i  67. 

IS  Medway  C.  Fact'y  v.  Adams,  10  Mass.  360 ;  Millege  v.  B.  I.  Co.  5 
Ciish.  176  ;  N.  Y.  Distilling  Co.  v.  Brant,  69  111.  661 ;  but  see  Wooster  v. 
Lyons,  1  Black,  CO. 

19  W.  L.  Co.  V.  Bank  of  Brunswick,  53  Ga.  30. 

20  Hazard  v.  Durant,  9  II.  I.  602. 

g  4.  Of  the  descriptio  personae,  capacity,  etc.  — Parties 
must  be  designated  by  name  and  not  by  a  mere  description  of 
the  ijerson.i  When  the  plaintiff  was  described  as  "  The  People 
of  the  U.  S.  of  the  Territory  of  Idaho,"  an  objection  that 
plaintiff  has  no  legal  capacity  to  sue,  founded  upon  the  fact 
that  the  abbreviation  U.  S.  was  used  in  the  title  of  the  cause, 
was  held  not  well  taken.'-'  It  is  sufficient  that  the  capacity  in 
which  a  person  sues  appears  in  the  body  of  the  complaint.^ 
He  cannot,  however,  cause  it  to  appear  therein  that  he  sues  in 
another's  right,  and  insist  at  tlie  hearing  that  he  has  sued  for 
himself  as  well.^  Thus  a  sole  corporation  having  two  capac- 
ities—  i.  e.,  natural  and  corporate  —  must  always  show  in  what 
right  it  sues. 5  Apt  and  fitting  words  should  be  used  for  this 
purpose;  to  describe  one  as  A.,  executor  of  B.,  is  not  suffi- 
cient.^ So  the  words  "in  their  own  right"  are  not  equivalent 
to  the  words  "in  their  own  individual  rights,"  when  it  appears 
from  the  context  that  the  parties  sue  in  the  right  of  another.' 
The  addition  to  plaintiff's  name  in  the  commencement  of  the 
declaration  of  such  words  as  "survivor  of  A.  B.,"  "executor 
of  C.  D.,"  etc.,  are  merely  descriptions  of  the  person,  and  usu- 
ally surplusage.8  The  words  "A.,  guardian  of  B.,"  in  a  bond 
are  merely  descriptive  of  the  person ;  suit  may  be  maintained 
thereon  by  A.^  When  a  person  has  several  capacities,  and  is 
found  in  possession  of  property,  the  law  will  attach  the  posses- 
sion to  the  capacity  in  which  of  right  it  ought  to  be  held.*" 
An  action  may  be  maintained  against  a  person  in  his  individual 
capacity  and  as  executor ;  ^^  and  if  he  is  interested  in  several 
capacities,  it  is  not  sufficient  to  make  him  a  party  in  one  capac- 


21  EIGHTS   AND   EE3EEDIES.  §  5 

ity  alone. 12  jf  there  is  error  in  joining  him  in  each  capacity  it 
must  he  presented  in  the  court  helow  ;  it  cannot  he  raised  for 
the  first  time  in  the  supreme  court. ^^  In  proceedings  against 
ahsent  heirs  of  a  person  who  died  out  of  the  State,  and  whose 
names  are  unknown,  it  is  sufficient  to  describe  them  in  the 
published  notice  to  appear,  etc.,  as  the  unknown  heirsjof 
A.  B.,  etc." 

1  Sossman  v.  Price,  o7  Ala.  204  ;  bat  see  Tygart  v.  Poeplcs.  'J  r.ich* 
Eq.  47. 

2  People  r.  Sloper,  1  Idaho,  162  ;  and  see  Eslava  v.  Ames  Plow  Co. 
47  Ala.  384. 

3  Spear  ?•.  Ward.  20  Cal.  G7G ;  Tate  r.  Shackelford,  24  Ala.  510; 
Cofifman  v.  Parker,  11  Iowa.  14;  FUson  r.  Dunbar,  26  Pa.  St.  476; 
Keenan  v.  Du  Blgnon,  4fi  Ga.  260;  Cotton  r.  Davis,  3  Jones,  356;  and 
see  Ala.  G.  L.  Ins.  Co.  v.  Cobb,  57  Ala.  550. 

4  Lawson  v.  Kolbenson,  01  111.  417. 

5  Weston  v.  Hunt,  2  Mass.  501 ;  Lawson  r.  Kolbenso::,  61  111.  417. 

6  Daniel  v.  HollLngshead,  16  Ga.  192 ;  Laverty  v.  Woodward,  16 
Iowa,  1. 

7  Lawson  v.  Kolbenson,  61  ILL  417 ;  compare  Anderson  v.  Brock,  3 
Me.  243. 

8  Loveland  v.  Sears,  1  Colo.  435 ;  Bogert  v.  Vermilya,  10  X.  Y.  448 ; 
Lavertv  v.  Woodward,  16  Iowa,  1 ;  and  see  Chapman  v.  Speuce,  21 
Ala.  592  ;  Burke  v.  Steele,  40  Ga.  219 ;  Trustee  etc.  v.  Pace,  15  Ga.  490. 

9  Bradlevr.  Graves,  46  Ala.  280;  Jeffries  r.  McLean,  12  Mq.  541; 
Lary  r.  Young,  13  Ark.  400. 

10  Carson  v.  Phelps,  40  Md.  98  ;  Fleekinger  v.  Hull,  5  Giliu.  74  ;  and 
see  Huntington  v.  Day,  55  Ind.  7. 

11  Eoark  v.  Turner.  29  Ga.  456. 

12  Mavs  v.  Tompkins,  6  Munf.  527  ;  Carrington  r.  Dedier,  S  Gratt. 
260  ;  Arrnstrong  v.  Hall,  17  How.  Pr.  7S. 

13  Kittredge  v.  Raer,  92  U.  S.  US;  compare  Degive  r.  Meador,  51 
Ga.  160;  Silvernagle  ?•.  Flecker,  21  La.  An.  i;;0 ;  and  see  Beyris  v. 
Spor,  22  La.  An.  16  ;  Wells  v.  Wells,  23  La.  An.  224. 

14  Tygart  v.  Peoples,  9  Rich.  Eq.  47. 


§  5.  Who  may  become  parties.  —  Any  person  interested  in 
premises  sought  to  be  partitioned  may,  upon  proper  applica- 
tion, bo  made  a  party  at  any  stage  of  the  proceedings. ^  His 
interest,  however,  must  be  such  as  to  be  afiected  by  the  suit.^ 
One  creditor  of  a  common  debtor  has  no  right  to  bo  made 
a  party  to  an  ordinary  action  at  law  brought  by  another 
creditor  to  recover  a  debt ;  -^  but  if  the  design  of  the  bill  is  to 
declare  the  property  subject  to  the  lien  of  judgment  credit- 


^   5  EIGHTS  AKD   BE^LEDIES.  22 

ors,  all  having  liens  are  entitled  to  be  heard.*  So  where  cred- 
itors holding  liens  upon  the  same  premises  seek  to  enforce 
them  by  separate  suits,  and  the  junior  lienholder  first  obtains 
a  sale  of  the  premises,  it  is  good  practice  to  allow  the  older 
lienholder  to  become  a  party  to  the  suit.^  How  far  persons 
interested  should  be  made  parties  to  a  creditor's  suit  depends 
largely  upon  the  discretion  of  the  court,  and  the  facts  of  the 
particular  case.''  In  a  mandamus  proceeding  by  a  county 
against  its  officers  to  compel  them  to  hold  their  offices  at  the 
county  seat,  one  of  two  places  voted  for  as  such,  cannot  appear 
as  a  party. '  In  foreclosui-e  proceedings,  third  persons  claiming 
independent  title  to  the  premises  cannot  be  made  parties  for  the 
purpose  of  asserting  such  right.**  One  who  acquires  an  interest 
in  mortgaged  premises  pending  foreclosure  may  be  made  a 
defendant  upon  his  own  motion  ^  if  he  has  the  consent  of 
plaintiff;  1"  but  one  who  purchased  and  conveyed  premises 
with  covenants  of  warranty  in  ignorance  of  a  mortgage  lien 
thereon  cannot  open  the  decree  of  foreclosure  and  be  let  in  to 
redeem  if  he  was  not  a  party  to  the  original  suit.^^  In  an 
action  to  recover  land  there  is  no  error  in  permitting  the  pur- 
chaser {pendente  lite)  of  defendant's  title  to  defend  the  action, 
if  he  relies  upon  defendant's  title  and  does  not  deny  his  pos- 
session.i-  So  a  judgment  debtor  may  come  in  and  become 
bound  by  a  decree  where  it  is  sought  to  reach  property  held  in 
trust  for  him  by  others. ^^  AVhen  the  piirchaser  of  land  at  sher- 
iffs sale  seeks  by  suit  to  determine  conflicting  claims  to  it,  one 
who  has  no  interest  in  the  land,  nor  in  the  question  of  the  val- 
idity of  the  sale,  cannot  become  a  party  to  the  suit  for  the  pur- 
pose of  attacking  the  sale.^*  If  suit  is  brought  against  the 
purchaser  by  a  third  person,  and  it  is  alleged  that  there  was 
irregularity  in  tlie  sale,  whereby  the  land  did  not  bring  its 
value,  the  execution  debtor  may  become  a  party  by  interven- 
tion, or  may  proceed  by  motion  in  the  original  suit.^^  Generally 
an  application  to  be  made  a  party  to  a  suit  will  be  denied,  if  in 
order  to  give  the  applicant  any  benefit  the  construction  of  the 
bill  will  have  to  be  materially  changed,  and  new  controversies 
brought  into  the  suit.^^ 


23  EIGHTS  A>'D   REMEDIES.  §   6 

1  Parkinson  v.  Cahlinger,  &  3Io.  293. 

2  Gregory  r.  High,  20  Ind.  527. 

3  Askew  r.  Carswell,  63  Ga.  1G2. 

4  Voorhees  r.  Reford,  14  X.  J.  Eq.  158. 

5  Porter  v.  Barclay,  18  Ohio  St.  .>17, 

6  Smith  V.  Williams,  116  INIass.  510. 

7  Calaveras  Co.  v.  Brockway,  30  Cal.  34Q. 

8  Allen  r.  Lathrop,  4»  Ga.  133  ;  see  also  ?  40. 

9  Hull  V.  Lyon,  27  3Io.  570 ;  compare  Dsgive  r.  Xeador,  51  Ga, 
160. 

10  Steele  v.  Taylor,  1  ilinn.  2S4, 

11  Barton  v.  Kingsbury,  43  Vt.  610. 

12  McFaddeu  r.  Wallace,  .33  Cal.  51. 

13  Cowing  V.  Greene,  45  Barb.  590. 

14  Flanagin  v.  Pearson,  50  Texas,  383  ;  and  see  ?  47. 

15  Cravens  v.  Wilson,  4S  Texas,  324. 

16  r.  S.  V.  Gillesipie,  12  The  Reporter,  3S3 ;  and  compare  Holliday 
v.  Strickland,  60  Ga.  150. 

§  6.     Of  the  position  of  a  party  upon  the  record.  — As  a  rule 

an  action  will  not  be  dismissed  merely  on  account  of  an  in- 
formality in  the  position  in  which  parties  are  presented  before 
the  court. ^  In  equity  if  all  interested  parties  are  before  the 
court  it  is  all  that  is  absolutely  required. ^  "VThere  the  interests 
of  infants  are  sought  to  be  affected,  and  more  particularly 
their  interests  in  real  property,  they  should  be  made  parties 
defendant.^  As  a  rule  when  persons  who  are  interested  in  like 
manner,  as  plaintiff  in  the  subject-matter 'of  the  suit,  refuse  to 
join  in  prosecuting  it,  they  may  be  made  defendants,  the  rea- 
son being  stated  in  the  pleading.*  This  rule  appUes  to  joint 
administrators,^  to  voluntaiy  associations.''  If  answer  is  filed 
by  the  parties  -without  objection  being  raised,  the  court  will 
infer  their  refusal  to  be  made  plaintiffs.'  If  objection  is  made 
it  is  not  error  to  allow  the  parties  to  change  their  attitudes  so 
as  to  be  placed  on  the  side  of  their  interest.*^  The  objection  is 
proi)erly  raised  by  demurrer.^  In  an  action  at  law  the  same 
person  cannot  be  both  plaintiff  and  defendant.i*^  This  rule  is 
confined  in  its  operation  to  natural  persons,  and  extends  to 
them  whether  they  sue  in  their  individual  right,  or  in  a  fidu- 
cary  capacity. ^^  Xo  doubt  the  rule  applies  where  there  is  a 
contract  to  be  enforced,^"-^  or  a  wrong  redressed;  but  it  may 


g   7  EIGHTS  ANT)  KEMEDIES.  24 

well  bo  clnubtad  whether  it  applies  to  a  statutory  action  of 
partition.'^  In  partition,  so  far  as  the  ultimate  purpose,  to 
wit,  the  partition,  is  concerned,  all  parties  are  actors,  or  plain- 
tifis,  ancl  in  this  respect  it  is  a  matter  of  no  moment  whether 
they  appear  on  the  record  as  plaintiffs  or  defendants.^*  In 
equity  the  rule  has  no  application. ^^  Thus  where  a  note  was 
executed  by  thirteen  persons  to  three  of  their  number,  and 
secured  by  mortgage,  suit  of  foreclosure  was  properly  brought 
in  the  name  of  the  three  payees  against  all  the  makers. i'' 

1  AVest  r.  Bank  of  Rutland,  19  Vt.  403;  compare  Mason  v. 
Smalley,  8  Vt.  US. 

2  Sapp  r.  Phelps,  92  111.  595 ;  Allen  v.  Bangus,  1  Swan, 404  ;  and  see 
Holvoke  V.  Loud,  69  Me.  61 ;  Dean  v.  Cliamberlln,6  Duer,694  ;  Rogers 
V.  Dively,  51  Mo.  1C5. 

3  Davidson  v.  Bowden,  5  Sneed,  133 ;  Frazler  r.  TuUoss,  1  Swan,  77. 

4  Smith  r.  Sackett,  5  Gilm.  545 ;  Cummings  v.  Latham,  4  Mou.  104 ; 
Cook  V.  Hadly,  Cooke,  405. 

5  Rizcr  V.  Gillpatrick,  IG  Kan.  564. 
G    Whitney  v.  Mayo,  15  111.  254. 

7  Osgood  V.  Franklin,  2  Johns.  Ch.  18. 

8  Turnham  r.  Turuham,  3  Mon.  B.  532. 

9  Freeman  v.  Schofiekl,  16  X.  J.  Kq.  28;  Carpenter  v.  O'Dough- 
erty,  2  X.  Y.  Sup.  Ct.  431 ;  S.  C.  53  N.  Y.  681. 

10  Pearson  r.  Xesbit.  1  Dev.  316;  Denny  v.  Metcalf,  28  Me.  89; 
Blaisdell  r.  Ladd,  14  N.  H.  130;  Pierce  v.  Boston  Five  Cent  Saving 
Bank,  125  Mass.  505. 

11  Connoll  V.  Woodard,  5  How.  670. 

12  See  Batchelder  v.  Wendell,  3G  N.  II.  215 ;  BlaisdeU  v.  Pray,  68 
Mo.  270. 

13  Elaisdell  v.  Pray,  63  Me.  270, 

14  Sonter  v.  De  Berual,  38  Cal.  642. 

15  Batchelder  v.  Wendell,  36  X.  H.  215. 
IG    McDowell  v.  Jacobs,  10  Cal,  387. 

§  7.  Wlio  are  bound  by  legal  proceedings.  — No  one  but 
parties  and  privies  to  the  suit.  —  Proceedings  in  rem,  when  le- 
gally instituted,  bind  every  one.^  In  the  sense  here  intended, 
the  term  "parties  "  includes  all  persons  having  a  right  to  control 
the  proceedings,  to  make  defense,  to  adduce  evidence,  and 
cross-examine  witnesses,  and  to  appeal  when  appeal  lies,^  By 
"px-ivies"  is  meant  all  who  stand  in  mutual  or  successive  rela- 
tionship to  the  same  rights  of  property.'*  But  the  rule  does  not 
extend  so  far  as  to  hold  purchasers  bound  by  subsequent  litiga- 


2j  rights  a>t)  kexedies.  ^  7 

tion  in  respect  to  the  property  between  their  vendors  and  others.* 
In  consolidated  suits  parties  must  notice  the  issues  and  are  bound 
by  the  decision.^  In  probate  proceedings;  no  living  person  is 
bound  by  the  adjudication  of  a  court  that  he  is  dead,  the  whole 
proceedings  are  void.**  No  person  can  be  affected  by  a  judicial 
proceeding  to  which  he  is  not  a  party  ;  before  his  rights  can  be 
concluded  he  must  have  a  day  in  court. '  So  also  a  party  before 
the  court  cannot  have  a  decree  rendered  against  him  which  de- 
termines rights  that  can  only  be  settled  by  reaching  an  absent 
party.^  While  there  are  cases  in  which  persons  interested  may 
by  petition  be  made  parties  by  leave  of  the  court,  yet  there  is 
no  case  in  which  they  have  been  held  concluded  by  the  decree, 
without  being  parties. '^  If,  however,  an  action  is  prosecuted  in 
whole  or  in  part  for  the  benefit  of  a  person,  if  he  were  to  share 
in  the  fruits  of  the  judgment  he  is  to  be  regarded  as  a  party  in 
interest  and  bound  by  the  judgment,^"  whether  his  name  were 
used  as  a  party  or  not.^^  Upon  motion  to  correct  a  judgment 
against  a  party  not  served  with  process,  those  who  have  had 
their  day  in  court  may  not  appear  and  be  heard ;  they  are  not 
parties  to  the  motion. ^^  infants  aggrieved  by  a  decree  may 
proceed  at  once  to  obtain  redress  ;  they  need  not  wait  until 
their  majority,  nor  are  they  bound  to  proceed  by  rehearing  or 
bill  of  review,  but  may  file  an  original  bill  alleging  fraud  or 
collusion,  or  error  appearing  on  the  face  of  the  decree. ^^  When 
a  woman  who  is  a  defendant  in  an  action  of  partition  intermar- 
ries during  the  pendency  of  the  suit,  it  does  not  follow  that  the 
irregularity  in  failing  to  suggest  the  marriage  or  to  make  the 
husband  a  party  is  fatal,  or  that  he  can  assert  such  acquired 
rights  in  a  subsequent  action.^*  The  absence  of  proper  parties 
in  an  equitable  action  is  not  a  jurisdictional  defect  which  ren- 
ders the  judgment  void  as  between  the  parties  to  it.^^  Its 
jurisdiction  depends  not  upon  the  question  as  to  whether  all 
the  proper  parties  are  before  the  court,  but  upon  the  nature  of 
the  rights  of  the  parties  before  it.^^  A  suit  to  foreclose  a  mort- 
gage is  both  a  proceeding  in  personam  and  iyi  rem,  and  to  make 
a  valid  decree  the  court  must  have  jurisdiction  over  the  person 
and  the  thing.^'     An  elder  lienholder  is  not  affected  bv  the 


2   7  RIGHTS  AND  REMEDIES.  26 

suit  of  a  younger,  unless  made  a  party  thereto. ^^  So  in  suit  by 
the  elder  lienholder,  a  younger  encumbrancer  should  be  made 
a  party  j^'-*  unless  made  parties  they  will  not  be  bound  by  the 
judgment  ;2'*  the  mortgagor,  unless  he  has  disposed  of  the 
equity  of  redemption,  should  be  made  a  party. ^^  If,  however, 
the  purchaser  holds  by  a  mere  unrecorded  instrument  he  will 
be  bound  by  a  decree  against  his  grantor.22  Intermeddlcrs 
with  property  who  buy  pending  litigation  need  not  be  made 
parties,  but  will  be  bound  by  the  decree  rendered.^^  This  rule 
has  been  held  to  apply  in  actions  of  ejectment. 2*  When  plaintiff 
moves  on  a  particular  date  that  a  person  be  made  a  party  to 
the  suit,  and  on  a  subsequent  date  stipulates  that  he  may  file  an 
answer,  as  of  the  former  date,  he  cannot  be  heard  to  say  that 
such  person  was  not  a  party,  and  present  in  court  from  the 
former  date.^^ 

1  Besancon  v.  Brownson,  33  Mich.  392 ;  M.  &  St.  L.  P.  Co.  v.  Grey, 
9  Bush,  14S  ;  W.  M.  &  M.  Co.  v.  Va.  Canal  Co.  10  W.  Va.  293 ;  compare 

n. 

2  Lipscomb  v.  Postell,  38  Miss.  489. 

3  Whitney  v.  Brunette,  15  Wis.  70 ;  Lipscomb  v.  Postell,  38  Miss. 
476. 

4  Whitney  v.  Burnette,  15  Wis.  70. 

5  Tharp  r.  Cotton,  7  Mon.  B.  643. 

6  D'Arnsmont  ?'.  Jones,  10  The  Reporter,  559 ;  Lavin  v.  Emigrant 
Sav.  Inst.  9  The  Reporter,  541 ;  Roderisras  1:  East  River  8av.  Inst.  63 
N.  Y.  460  ;  Stephenson  ?•.  Sup'r  Court,  Supreme  Court  of  Cal.  Xov.  15, 
1882. 

7  Hale  v.  Holland,  92  111.  4S6  ;  Ex  parte  Holman,  28  Iowa,  88  ;  A. 
T.  <fe  S.  F.  Ry.  Co.  v.  Commrs.  12  Kan.  139 :  Adams  v.  Filer.  7  Wis. 
278;  Gaytes  v.  Franklin  Sav.  Bank,  85  111.  253;  Armstrong  v.  Arm- 
strong, "l9  X.  .1.  Eq.  ^■io^^;  Powell  v.  Finn,  5  Duer,666;  Caraey  v.  Em- 
mons, 9  Wis.  114  ;  Austin  v.  Curtis,  41  Mich.  723. 

8  Reed  v.  Baker,  42  Mich.  272 ;  see  also  ?  38. 

9  Hopkins  v.  Roseclare  L.  Co.  72  111.  .378;  compare  Carney  r. 
Emmons,  9  Wis.  117  ;  Stevens  v.  Brooks,  22  Wis.  695. 

10  Conger  v.  Chilcote,  42  Iowa,  18. 

11  Koehler  v.  Bernicker,  63  Mo.  368. 

12  Carlon  v.  Ruffner,  12  W.  Va.  311. 

13  Loyd  r.  Malone,  23  111.  43;  Hess  r.  Voss,  52  111,  478;  but  see 
Rivers  v.  Durr,  46  Ala.  422  ;  Reville  v.  Claxon,  12  Bush,  562. 

14  Koehler  v.  Bernicker,  63  Mo.  368. 

15  Hales  v.  Holland,  92  111.  496 ;  Saloy  v.  New  Orleans,  33  La.  An.  99. 

16  Smith  V.  Ford,  48  AVis.  134  ;  and  see  ?  38. 

17  Moore  v.  Starks,  1  Ohio  St.  373 ;  and  see  ?  27. 


27  EIGHTS  AXD   KE2IEDIES.  §  8 

IS  Hooker  v.  Reas,  IS  Cal.  6-53  ;  compare  Gibon  v.  Belleville  W.  L. 
Co.  7  >r.  J.  Eq.  535. 

13  McCov  V.  Quick,  .30  AVis.  52S ;  Rodfleld  v.  Hart,  12  Iowa,  357; 
Strong  v.  AUen,  44  111.  43:3 ;  ilillen  r.  Finn,  1  Neb.  301. 

20  McCall  V.  Yard,  X.  J.  Eq.  Co  ;  H"im  v  .Vo^el,  6  J  Mo.  5.3.3 ;  Davis 
V.  Rankin,  50  Tex.  270  ;  Carpentier  v.  Williamson,  25  C;il.  154. 

21  Brundred  v.  Walker,  12  X.  J.  Eq.  140 ;  Chase  v.  Abbott,  20  Iowa, 
160  ;  JoLinson  v.  iloiiell,  13  Iowa,  300, 

22  Aldrich  v.  Stevens,  49  C::l.  673. 

23  2Ialone  r.  IMarriott,  64  Ala.  4:0. 

24  Wattsou  I'.  Dowling,  23  Cal.  120. 

25  Lawrence  v.  Ballou,  50  Cal.  261. 

5  8.  Of  tii3  rigiits  cf  parties  t3  a  suit.  — Parties  must 
vindicate  their  owu  riglits ;  one  cannot  complain  for  others  of 
errors  which,  if  they  exist,  in  no  manner  affjct  his  own  inter- 
est.^ A  person  not  a  party  to  a  suit  may  make  no  motion 
therein,  except  to  be  made  a  party. ^  In  determining  the  rights 
of  parties  under  a  State  law,  the  federal  courts  will  never  in  a 
doubtful  case  declare  such  law  to  be  in  conflict  with  the  State 
Constitution,  unless  sustained  by  a  direct  adjudication  of  the 
highest  com-t  of  the  State.-*  In  an  action  not  founded  upon 
contract,  jurisdiction  of  the  federal  courts  depends  upon  the 
cirizanship  of  the  party  of  record,  whether  he  be  assignor  or 
assignee  of  the  original  claim,*  A  joint  stock  company  which 
has  all  the  rights  of  a  corporation,  by  virtue  of  the  laws  of  the 
State  creating  it,  may  sue  in  the  federal  courts  in  the  same 
manner  as  in  the  State  court. ^  It  seems  also  that  a  foreign 
corporation,  doing  business  within  a  State,  may,  even  though 
prohibited  by  its  laws,  sue  in  the  federal  courts;*'  and  gener- 
ally, whenever  either  by  common  law  or  statute  a  right  of 
action  has  become  fixed,  and  a  liability  incurred,  that  liability 
may  be  enforced  and  the  right  pursued  in  any  court  which  has 
jurisdiction.'^  The  United  States  by  virtue  of  then-  sovereign 
character  may  claim  exemption  from  legal  proceedings ;  but 
when  they  enter  the  courts  as  a  litigant  they  are  (in  absence  of 
statute)  bound  by  the  same  rules  as  other  parties.^  The  law 
recognizes  the  assignment  of  choses  in  action,  and  for  the  pro- 
tection of  the  rights  of  the  assignee  permits  him  to  bring  suit 
in  the  name  of  the  assignor,^  who  can  interfere  only  for  the 


g  8  KIGHTS   AND   KEMEEIES.  23 

pui'pose  of  requiring  indemnity  against  cost.^"  When  the 
instrument  upon  which  suit  is  brought  was  taken  in  the  name 
of  an  agent,  anel  the  defendant  raises  the  objection  that  iilaint- 
iff  has  no  interest,  he  may  amend  by  showing  to  xchose  use  he 
sues.^i  In  case  of  the  death  of  plaintiff,  the  failure  of  his 
representatives  to  prosecute  the  suit  does  not  of  itself  dissolro 
an  injunction ;  an  order  of  court  is  necessary  for  that  pur- 
pose.^- When  a  complaint  has  been  filed  that  states  a  cause  of 
action,  plaintiff  is  entitled  to  give  evidence  in  support  thereof; 
as  a  rule,  an  action  should  not  be  dismissed  upon  the  opening 
statement  of  counsel. ^^  A  dcfenelant  has  a  standing  in  court 
as  long  as  he  is  interested  in  contesting  the  amount  to  be 
decreed  against  him,  in  favor  of  collateral  parties,  even  though 
he  has  compromised  the  suit  with  the  principal  creditor.^* 
"When  a  elefenelant  parts  with  his  interest  in  a  suit,  it  is  not  as 
a  rule  necessary  to  bring  in  nev,-  parties,  nor  can  he  by  such 
proceeding  divest  himself  of  liability.^^  So  if  a  party  has  a 
right  to  avail  himself  of  another's  defense,  the  latter  may  not, 
after  submission  of  the  cause  for  trial,  withdraw  it  against  the 
objection  of  the  former. ^^  So  when  defendant  has  been  wrong- 
fully dispossesseel  of  land  by  legal  process,  he  is  entitled  to 
restitution  and  an  inquisition  of  damages  in  that  action,  and 
plaintifi"  cannot  i^revent  his  right  by  nonsuit. i"  When  a  non- 
resident plaintiff  has  brought  suit  without  giving  security  for 
costs,  defendant  may  have  it  dismissed  on  motion.^'*  Generally 
a  mere  personal  privilege  may  be  waived,  as  the  Statute  of 
Limitations,  infancy,  etc. ;  ^^  but  if  the  statvite  has  run  in  favor 
of  a  person,  he  cannot  be  depriveel  of  his  rights  by  being  made 
a  party  to  an  existing  suit  by  supplemental  pkaelings.^'^  When 
a  statute  creates  a  right  of  action  unknown  to  the  common 
law,  and  limits  the  time  within  which  suit  may  be  brought 
thereon,  such  limitation  is  operative  in  any  juriseliction  where 
plaintiff  may  sue. 21  If,  however,  when  tlia  right  of  action 
accrues  there  is  no  one  to  assert  it,  the  statute  will  not  com- 
mence to  run  in  favor  of  the  other  party. 2-  In  proceedings  to 
foreclose  a  mortgage,  if  the  petition  be  defective,  plaintiff  may 
abandon  the  security  and  take  judgment  upon  the  note. 2^    If 


29  RIGHTS   A>T)   EE3IEDIES.  §    8 

the  only  question  involved  is  -^vhether  the  lien  of  plaintiff's 
mortgage  is  prior  or  subsequent  to  that  of  defendant,  it  is 
error  for  the  court  to  proceed  further  and  decide  as  to  the 
validity  of  the  mortgage. 2*  After  the  appointment  of  a  re- 
ceiver in  a  creditor's  suit,  plaintiff  is  not  entitled  to  have  exe- 
cution issued  for  his  use,  etc. ;  the  I'eceiver  is  the  proper  party 
to  enforce  the  judgment.^^  A  conveyance  of  property  by  a 
debtor  to  d3fraud  creditors  is  void  as  to  existing  creditors  ;  but 
one  who  gives  credit  after  the  conveyance  and  with  full  knowl- 
edg2  is  not  entitled  to  have  it  set  aside  upon  that  ground.^'' 
When  by  statute  a  separate  judgment  is  authorized  upon  a 
joint  and  several  instrument,  plaintiff  may,  after  exceptions 
taken  by  one  defendant,  have  judgment  and  execution  against 
the  other. -^  In  proceeding  by  rule  or  motion  for  restitution 
of  money  or  property  obtained  under  a  judgment,  no  other 
demand  outside  of  the  original  suit  and  not  disposed  of  by  the 
decree  should  be  brought  into  the  litigation;  such  demand 
should  be  set  up  by  independent  suit.^^ 

1  Albright  v.  Flowers,  52  Miss.  2.50;  and  see  Brewer  r-.  Dodge,  28 
Mi?h.  .361 ;  Livingston  r.  D'Orgendv,  1  Mart.  (La..)  87 ;  Schnieder  v. 
Tiiill,  10  The  Reporter.  70. 

2  Linn  v.  Wheeler,  21  X.  J.  Eq.  341 ;  and  see  Esterbrook  v.  Ahern, 
31  X.  J.  Eq.  .3  ;  C.  K.  E.  &  B,  Co.  v.  Craig,  oJ  Ga.  133  ;  Tranmiel  v.  Sim- 
mons, 8  Ala.  272. 

3  .Smith  V.  Fon  Du  Lac,  8  Fed.  Rep.  234. 

4  Van  Bokelen  r.  Cook,  .5  .Sawy.  5;)1. 

.5    Fargo  r.  L.  X.  A.  &.  Chic.  By.  Co.  11  The  Reporter,  736. 

6  Ins.  Co.  V.  Harper,  3  Hughes,  260 ;  Ins.  Co.  v.  Morse,  20  Wall. 
445  ;  Ins.  Co.  v.  Doyle,  G  Biss.  463. 

7  Dennick  v.  C?nt.  Rv.  Co.  11  The  Reporter,  .522 ;  Leonard  v.  Col. 
S.  Xav.  Co.  84  X.  Y.  .52  ;  but  see  Buckles  v.  Ellers,  72  Ind.  220. 

8  IT.  S.  V.  Flint,  4  Sawy.  53 ;  compare  Dabney  v.  State  Bank  of 
South  Carolina,  3  S.  C.  163. 

9  Hargraves  ;•.  Lewis,  6  Ga.  211. 

10  Southwick  V.  Hopkins,  47  Me.  366, 

11  Buffington  V.  Blackwell,  .52  Ga.  1.30 ;  and  see  Copp  r.  Erockwav, 
3Paig3,.>44. 

12  Collier  v.  Bank  of  Xewbern,  1  Dev.  &  B.  Eq.  3-30. 

13  Linds  v.  Bensol,  22  Hun,  601. 

14  Carter  v.  Davis,  8  Fla.  199  ;  and  see  Goddard  v.  Ordway,  101  U.  S. 
745. 

15  Mickla  v.  Maxfleld,  42  Mich.  311. 


g  y  EIGHTS   AND   RE3IEDIES.  M 

16  Hearn  v.  Lander,  11  Bush,  673 ;  Ins.  Co.  r,  Maury,  12  The  He- 
porter,  510 ;  and  see  State  v.  Ky.  Co.  8  S.  C.  167. 

17  Lane  v.  Morton,  81  N.  C.  40. 

18  Ex  parte  Cole,  23  Ala.  51. 

19  Wright  V.  Steele,  2  X.  H.  53  ;  Grattan  v.  ^Yiggw,  23  Cal.  25. 

20  Jeflfers  v.  Cook,  58  Cal.  147 ;  Shaw  v.  Cock  "8  X.  Y.  1L6. 

21  Boyd  V.  Clark,  13  The  Reporter,  40. 

22  INIetcalf  v.  Grover,  55  Miss.  147. 

23  Weathorboo  ?-.  Townes,  42  Tex.  83. 

24  Heath  v.  Silverthorn  L.  M.  &  L.  Co.  33  Wis.  159. 

25  Bignoy  v.  Tallmedge,  19  Abb.  Pr.  10. 
20    .Shcppard  v.  Thomas,  24  Kan.  782. 

27    nawkes  v.  Phillips,  7  Gray,  286. 
23    Morgan  v.  Hart,  9  Mon.  B.  80. 

g  9.  Ganerally  of  the  remedies  of  the  parties.  — As  a  gen- 
eral rule  parties  must  recover,  if  at  all,  upon  their  rights  as 
they  existed  at  the  commencement  of  the  action,  and  according 
to  the  character  in  which  they  sue.^  This  right  must  continue 
until  trial. 2  Under  the  Codes  it  was  held  that  m  case  of  trans- 
fer of  interest  other  than  by  death,  the  action  might  be  main- 
tained either  in  the  name  of  the  original  party,  or  the  name  of 
the  transferer  might  be  substituted  plaintifl'.^  So  undjr  Code 
practice  it  has  been  held  that  every  action  may  be  termed  an 
action  on  the  case,  and  it  would  seem  that  any  ground  of  relief 
that  may  be  regarded  as  part  of  the  case  may  be  included  in  the 
action.*  When  it  is  desired  to  unite  two  causes  of  action  in  the 
same  complaint  they  should  be  separately  stated,  and  each  cause 
of  action  should  be  complete  in  itself.^  If  a  person  has  two 
distinct  remedies  for  a  wrong,  and  attempts  to  pursue  both  at 
the  same  time,  upon  motion,  he  will  be  required  to  elect  which 
he  will  prosecute.'^  When  a  person  is  joined  as  plaintiff  in  a 
suit  without  his  knowledge  or  approval,  and  he  takes  no  part 
in  the  action,  it  should,  upon  motion,'  be  dismissed  as  to  him ; " 
but  the  objection  should  be  taken  before  trial.^  When  a  statute 
imposes  a  duty  upon  a  person,  but  provides  no  remedy  for  its 
breach,  the  law  will  provide  one ;  but  if  the  statute  which 
imposes  a  new  duty  also  provides  a  particular  remedy,  that  is 
usually  the  only  redress  an  injured  party  has.^"  At  common 
law  i)ersonal  actions,  whether  ex  contractu  or  ex  delicto,  are 


31  EI3KT3   AXD   EEMEDIES.  §    0 

transitory,  and  a:,  a  rule  may  be  maintained  anywhere ;  ^^  but 
^-  J  court  will  lend  its  aid  to  enforce  a  claim  arising  from  the 
transgression  of  a  positive  law.12  In  applying  a  foreign  law 
courts  will  administer  it,  as  far  as  the  rights  of  tlie  parties  are 
concerned,  as  such  foreign  courts  would. ^^  Equity  is  part  and 
parcel  of  the  law  of  the  State,  and  courts  will  therefore  adopt 
chancery  rules  to  prevent  a  failure  of  justice.  When  the  com- 
mon law  forms  are  inadequate,  the  practice  in  chancery  in  rela- 
tion to  the  parties  who  ought  to  be  before  the  court  will  be 
adhered  to  as  nearly  as  i^ossible.^^  A  court  of  equity  will  give 
redress  to  a  person,  when  otherwise  he  would  be  driven  into 
the  courts  of  another  Ctcite  to  obtain  it.^^  When  plaintiff  aslis 
relief  on  the  ground  of  fraud, ^^  and  fails  to  prove  it,  he  is  not 
entitled  to  relief  in  that  suit  upon  any  other  ground.^^  Nor  will 
he  in  any  suit  be  aSbrded  relief  for  an  injury  sustained  by  the 
fraud  of  a  person  who  is  no  jDarty  to  the  contract  induced  by 
that  frand.13  After  a  trial  at  law  a  court  of  equity  will  not 
lend  its  aid  to  a  party,  unless  he  can  impeach  the  verdict  on 
grounds  which  he  could  not  avail  himself  of  there,  or  was  pre- 
vented from  so  doing  by  fraud  or  accident,  or  the  act  of  the 
opposite  party,  unmixed  with  negligence  or  fault  on  his  own 
part.i^  To  entitle  a  person  to  relief  on  the  ground  of  mistake 
it  must  appear  that  it  was  mutual,  and  the  mistake  of  both  par- 
ties to  the  contract ;  '■^^  it  must  be  clearly  pointed  out,  and  not 
arise  from  the  gross  negligence  of  plaintiff. 21  An  equitable 
defense  cannot  be  set  up  in  an  action  at  law  if  it  would  require 
the  introduction  into  the  suit  of  a  new  party  defendant. "''-  In 
an  action  which  has  been  removed  from  a  State  to  a  federal 
court,  and  in  which  bo-li  legal  and  equitable  relief  are  de- 
manded, the  plaintiff  will  be  required  to  replead  before  pro- 
ceeding with  the  suit.2>5  A  defendant  may  plead  as  many 
defenses  as  he  may  have,  and  if  separately  stated,  not  incon- 
sistent in  themselves,  and  sufficient  in  form  and  substance ; 
the  fact  that  they  are  inconsistent  with  each  other  even  in  a 
verified  pleading  is  immaterial. 2-  In  an  action  at  law  one  of 
several  defendants  is  not  entitled  to  change  the  venae  of  the 
whole  action  without  the  concurrence  of  all  the  co-defendants. ^^ 


§'9  EIGHTS  AND  EEMEDIES.  32 

In  equity  it  was  held  the  motion  -svoiild  not  be  denied  simply 
because  a  defendant  ■who  had  not  appeared  and  was  in  default 
had  not  joined  in  the  application.^^  In  bills  relatiug  to  real 
property,  persons  may  be  made  defendants  under  the  general 
averment  that  they  claim  or  pretend  to  have  some  title  or  in- 
terest in  the  premises,  ■nhich  is  fraudiilcnt  and  void,"'^^  In 
suits  to  determine  conflicting  claims  to  land,  plaintiff  must 
recover,  if  at  all,  upon  the  case  presented  in  his  bill ;  he  can- 
not obtain  affirmative  relief  upon  defendant's  answer  alone. ^^ 
To  maintain  the  statutory  action  for  partition  of  lands,  plaint- 
iff need  have  neither  possession  nor  right  of  possession.-''  If 
his  title  is  disputed  and  in  doiibt,  he  will  be  required  to  estab- 
lish his  rights  at  law  before  he  will  be  permitted  to  proceed  in 
equity  for  the  partition  of  lands. ^'^  Plaintiff  may  mai::tain  the 
action  of  ejectment,  even  though  his  title  deeds  be  lost;  he  need 
not  resort  to  equity  in  the  first  instance  to  establish  his  right.^" 
He  must  show  title  before  he  can  disturb  defendant's  posses- 
sion,^i  and  must  have  had  that  title  at  the  commencement  of 
the  action.-^-  He  must  recover  on  the  strength  of  his  own  title 
as  being  good  against  the  world  or  good  against  the  defendant 
by  estoppel.^-*  When  plaintiff  and  defendant  claim  under  a 
conveyance  from  a  common  grantor,  it  is  not  necessary  for 
plaintiff  to  deraign  title  from  a  paramount  source.^*  The  quan- 
tity of  land  need  not  correspond  with  that  for  which  plaintiff 
sues,  ^^  but  the  defendant  must,  at  the  commencement  of  the 
action,  have  been  in  possession  of  some  part  of  the  premises  to 
which  j)]aintiff  establishes  title. ^^  The  defense  must  be  founded 
upon  rights  existing  at  the  commencement  of  the  action  ;  de- 
fendant cannot  avail  himself  of  after  acquired  title.^'  When 
plaintiff  and  defendant  claim  title  through  the  same  person, 
neither  is  at  liberty  to  dispute  it  or  assert  a  superior  title  in 
another,  imless  he  has  acquired  it  or  in  some  manner  connects 
himself  with  the  true  owner.^^  q^q  Qf  ^i^q  niost  essential  pre- 
requisites for  a  final  injunction  is  that  all  persons  interested  in 
the  subject-matter  of  the  suit  be  made  parties."^  In  foreclosing 
a  land  contract,  it  is  not  necessary  in  presenting  a  proper  case 
for  the  issuance  of  injunction  to  prevent  the  removal  of  fixtures 


33  EIGHTS   A>"T)   EEirEDIES.  §   9 

from  tlie  premises,  to  show  that  the  defendant  is  insolvent  or 
unahle  to  respond  in  damages  for  such  waste  or  to  pay  surplus, 
that  question  is  immaterial. ^'^  When  it  is  shown  in  a  suit  by 
one  partner  against  another  that  defendant  has  deliberately 
resolved  to  break  up  the  business  of  the  firm,  and  that  it  can- 
not be  continued  to  advantage,  the  injunction  granted  will  not 
be  dissolved.'*^  When  an  account  involving  adverse  interests 
is  presented  to  a  court  of  equity  by  a  person  who  represents 
both  parties,  and  manages  both  sides  of  the  case,  the  court  will 
not  pass  judicially  upon  it.*^  When  from  any  cause  a  contract 
is  incapable  of  being  enforced  against  one  party  to  it,  he  is 
equally  incapable  of  enforcing  it  against  the  other  party. ^^ 
When  defendant  undertakes  to  pay  off  adjudgment  recovered 
against  plaintiff  by  a  third  person,  and  to  save  him  harmless 
therefrom,  plaintiff' may  maintain  suit  upon  the  undertaking, 
without  having  first  j)aid  the  judgment.**  A  creditor  who  has 
recovered  judgment  against  a  decedent  and  a  third  person 
upon  a  cause  of  action  that  dies  with  the  person,  must  exhaust 
his  remedies  against  the  survivor  before  proceeding  against  the 
estate.*^  In  an  action  of  trover  against  two  defendants  for  a 
joint  conversion,  plaintiff  may,  after  default  against  one,  com- 
promise the  claim  with  the  other,  and  afterward  have  damages 
assessed  against  the  former,  and  recover  the  amount  less  the 
sum  paid  by  the  co-defendant. •***  In  equity  a  decree  may  be 
made  between  co-defendants,  founded  upon  the  issues  raised 
by  the  pleadings  and  proofs  made  in  the  case,  and  connected 
with  the  subject-matter  of  the  litigation.*'  Where  new  parties 
are  made,  at  the  suggestion  of  defendants  in  theu"  answer,  that 
such  persons  claim  "to  have  some  interest  in  the  subject- 
matter  of  the  suit,"  and  they  are  summoned  to  answer  the 
petition  of  plaintiff  upon  their  default  being  entered,  the 
ultimate  rights  of  all  the  defendants  will  not  be  determined,  no 
relief  being  asked,  or  issue  tendered  by  the  original  defendanj^ 
as  against  such  new  parties.**^  So  also  after  there  has  ceased  to 
be  a  plaintiff  in  a  suit  the  court  cannot  proceed  to  determine 
the  rights  of  the  defendants  as  between  themselves.*''  A  court 
of  equity  vnll  not  retain  jurisdiction  of  a  suit  as  against  defend- 


§   9  KIGHTS   AND   REMEDIES.  34 

ants  from  whom  plaintiff  merely  seeks  auxiliary  relief  in  aid 
of  a  demand  against  another  defendant,  when  from  want  of 
jurisdiction  over  the  latter  it  is  unable  t )  adjudicate  the  claim. ^" 
As  a  rule,  when  a  decree  has  been  enrolled  a  court  will  not 
entertain  any  application  to  vaj-y  it,  except  upon  consent  of 
the  parties  thereto,  or  in  respect  to  matters  Avhich  are  granted 
as  of  course. ^^ 

1  Tappan  ?'.Tappan,30  N.  II.  09;  Hull  v.  Bell,  G  Met.  434;  see 
Moss  V.  Shear,  30  Cal.  474  ;  Backson  v.  McCall,  3  Cowen,  79 ;  Norfleet  r. 
Bussell,  C4  Mo.  178. 

2  Vila  V.  Weston,  33  Conn.  49 ;  see  Beanchard  v.  Ely,  12  Wend.  344. 

3  McPilie  V.  McPherson,  41  Mo.  524. 

4  Jones  v.  Cortes.  17  Cal.  498  ;  Manning  v.  Ileenan,  73  N.  Y.  51;  Gray 
V.  Dougherty,  25  Cal.  277. 

5  Sharp  v.  Miller,  54  Cal.  S31 ;  Haskell  v.  Haskell,  54  Cal.  262. 

6  C.  R.  Co.  V.  N.  J.  W.  R.  Co.  32  N.  J.  Eq.  G7 ;  and  see  Hughes  v. 
Vt.  Copper  Co.  7  Hun,  678 ;  generally  see  Welch  v.  Bagg,  12  Mich.  43  ; 
rignet  V.  Allison,  12  Mich.  329. 

7  Hall  V.  Southwick,  27  Minn.  234. 

8  Gravenstein's  Appeal,  49  Pa.  St.  319. 

9  Bawn  v.  Smith,  1  Brov.  426. 

10  "Brattleboro  v.  Wait,  44  Vt.  460. 

11  Leonard  i\  C.  S.  Nav.  Co.  84  N.  Y.  52 ;  but  see  Buckles  v.  Ellers, 
72  Ind.  224. 

12  Whelden  v.  Chappel,  8  R.  I.  233  ;  Collins  v.  Lane,  80  N.  Y.  627. 

13  S.  R.  &  D.  R.  Co.  V.  Lacy,  49  Ga.  110. 

14  Mathew  v.  Stevenson,  6  Pa.  St.  498. 

15  Henry  v.  Elliott,  6  Jones  Eq.  176. 

16  Winsor  v.  Pettis,  11  R.  L  50G. 

17  Early  v.  Chaer,  12  R.  I.  378. 

18  Russell  V.  Clark,  7  Cranch,  89. 

19  Duncan  v.  Lyon,  3  Johns.  Ch.   356  ;  Ritter  v.  D.  P.  Co.  fS  Mo.  459. 

20  Evarts  v.  Stogcr,  5  Orcg.  151. 

21  Lewis  V.  Lewis,  5  Orcg.  176. 

22  Holliday  v.  Strickland,  60  Ga.  150. 

23  La  Mothe  Manuf.  Co.  v.  IT.  T.  W.  Co.  15  Blatchf.  435. 

24  Buhuc  V.  Corbett,  43  Cal.  269, 

25  Rupp^>.  Swineford,  40  Wis.  30;  Sailly  v.  LIutton,  6  Wend.  508; 
compare  Welling  v.  Sweet,  1  How.  Pr.  156. 

26  Walcott  V.  Walcott,  32  Wis.  68. 

27  Finch  v.  Martin,  19  III.  Ill ;  and  see  Bell  v.  Gordon,  55  Miss.  49. 

28  Burton  v.  Leron,  5  Sawy.  524. 

29  Conyer  v.  Davis,  11  R.  I.  527 ;  Penn  v.  Cox,  IG  Ohio,  31 ;  Cook  v. 
Webb,  13  Minn.  170. 

30  Donaldson  v.  WiUiams,  50  Mo.  408. 


35  EIGHTS  AXD   KEaiEDIES.  §  9 

31  Foster  v.  Evans,  51  Mo.  40, 

32  Xorfleet  v.  Russell,  64  3Io.  178  ;  Hall  v.  Bell,  6  Xet.  433. 

33  Taylor  v.  Gooch,  3  Jones,  468  ;  see  also  Gay  v.  Ellis,  33  La.  A  n.  2.50. 

34  Whitman  v.  Steiger,  46  Cal.  253  ;  compare  Caldwell  v.  Neller,  81 
X.  C.  116. 

35  Huggins  v.  KeLchum,  4  Dev.  &  B.  421. 

36  Brown  v.  Braekett,  45  Cal.  173. 

37  Curtis  v.  Francis,  9  Cush.  443 ;  compare  Fitzpatrick  v.  Fitzpat- 
rick,  6  R.  I.  74  ;  contra.  Tustin  ?•.  Faught,  23  Cal.  242  ;  Moss  v.  Spear,  30 
Cal.  474;  Jackson  v.  McCall,  3  Cowen,  79;  generally  see  Young  v. 
Smith,  10  B.  I.  375. 

38  Caldwell  v.  Xelley,  81  X.  C.  116 ;  and  see  Wlaitmau  v.  Steiger,  46 
Cal.  2.5S. 

39  State  v.  Anderson,  5  Kan.  114. 

40  Taylor  v.  Collins,  51  "WLs.  12G. 

41  Sutro  V.  Wagner,  23  X.  J.  Eq.  388. 

42  Ford  r.  Wetherbee,  1  Dev.  &  B.  Eq.  22. 

43  Sturgis  r.  Galindo,  13  The  Reporter,  266. 

44  Bacon  v.  Marshall,  37  Iowa,  582. 

45  Hammond  v.  Hoffman,  2  Redf.  92 ;  and  see  King  v.  Gallowaj',  5 
Jones  Eq.  123. 

46  Heyer  v.  Carr,  6  R.  I.  45. 

47  Ingram  v.  Smith,  1  Head,  427 ;  Kay  v.  Whittaker,  44  X.  Y.  576  ; 
see  also  McPike  v.  McPherson,  41  Mo.  524. 

48  Com.  Bank  v.  Buckingham,  12  Ohio  St.  404;  and  see  Calvin  v. 
Williams,  8  Bush,  346. 

49  Ryan  v.  Tomlinson,  31  Cal.  16 ;  see  also  Risner  v.  Adams,  9  Rich. 
Eq.  247. 

50  Western  Ry.  Co.  r.  DeGraflf,  27  Minn.  1. 

51  Pf  eaflf  V.  Jones,  50  Md.  269. 


2  10  jUEiSDicnoN,  36 


CHAPTEK  II. 

JTTKISDICTION.* 

?  10.  Definition,  etc. 

?  11.  How  acquired. 

§  12.  By  attachment  —  Publication. 

§  13.  By  publication. 

2  14.  Of  appearance. 

?  15.  "Who  may  appear,  and  how  he  may  appear. 

?  16.  Effect  of  appearance. 

?  17.  "Withdrawal  of  appearance. 

^  10.  Definition — Generally. — Jurisdiction  is  the  power 
to  hear  and  determine,  or  to  determine  without  hearing,  or  to 
hear  without  determining.^  It  is  a  rule  that  admits  of  no 
exception  that  in  cases  when  jurisdiction  depends  upon  the 
party  it  is  the  party  named  in  the  record.^  The  words  "de- 
fendant and  defendants,"  as  used  in  the  Code,  so  far  as  they 
affect  the  question  of  jurisdiction  must  be  held  to  mean  not 
nominal  defendants  merely,  but  parties  who  have  a  real  and 
substantial  interest  adverse  to  the  plaintiff,  and  against  whom 
substantial  relief  is  sought.^  "When  a  corporation  is  created 
under  the  laws  of  a  State,  the  legal  presumption  is  that  its 
members  are  citizens  of  the  State  in  which  alone  the  corporate 
body  was  a  legal  existence.  Any  suit  by  or  against  such  body 
in  its  coi-porate  name  must  be  presumed  to  be  by  or  against 
citizens  of  the  State  creating  it,  and  no  averment  or  evidence  is 
admissable  for  the  purpose  of  withdrawing  the  suit  from  the 
jurisdiction  of  the  United  States  courts.*    So  also  where  the 

••'•  It  is  proper  to  remark  that  it  is  not  the  object  of  the  author  to 
present  the  law  fully  upon  the  question  of  jurisdiction  of  courts  over 
parties,  etc.  ;  such  a  dissertation  he  conceives  not  to  be  properly 
within  the  scope  of  this  work.  His  object  is  to  present  in  a  general 
manner  some  of  the  questions  touching  the  manner  of  acquiring 
jurisdiction,  etc.  For  a  specific  treatment  of  the  subject  the  reader 
IS  referred  to  the  works  of  various  authors  upon  the  subject,  and  to 
the  statutes  of  the  particular  State  in  which  he  may  practice. 


37  JTRISDICTION.  §    10 

j  urisdiction  of  the  federal  courts  depend  upon  the  citizenship 
of  the  parties,  the  facts  essential  to  support  that  jurisdiction 
nitist  appi-ar  somewhere  in  the  record.  It  is  sufficient  if  some- 
■u'here  they  are  in  some  form  affirmatively  shown,  but  need  not 
necessarily  he  averred  in  the  pleadings.  The  naked  averment 
of  residence  is  not,  however,  sufficient.^  So  where  in  a  suit 
against  the  stockholders  of  a  corporation  the  only  allegation  is 
as  to  the  citizenship  of  one  of  the  complainants,  and  the  cor- 
poration is  not  a  party,  nor  citizenship  of  the  defendants 
proved,  the  court  will  not  entertain  jurisdiction «  where  the 
Code  provides  that  every  resident  of  the  State  shall  be  sued 
before  his  own  judge,  i.  e,,  before  the  judge  having  jurisdiction 
over  the  place  where  he  has  his  domicil  or  residence.  Subject 
to  certain  exceptions  a  judgment  rendered  against  a  party  in 
any  other  place  not  within  the  exceptions  is  a  nullity."  Where 
two  or  more  persons  are  proper  parties,  plaintiff  may  institute 
suit  against  them  in  the  county  where  either  reside ;  ^  but  he 
cannot  for  the  purpose  of  obtaining  jurisdiction  over  a  non- 
resident improperly  join  one  who  is  a  resident.^  Where  two 
defendants  who  reside  in  different  counties  are  sued  in  the 
county  where  one  resides,  it  is  not  error  to  dismiss  the  action  as 
to  the  latter,  and  take  judgment  against  the  former  ;  jui'isdiction 
was  properly  exercised, ^^  The  record  of  a  court  of  competent 
jurisdiction  imports  absolute  verity,  and  the  finding  of  such 
court  that  the  person  assuming  to  act  as  guardian  was  in  fact 
such  is  sufficient  ^jrnnrt/ncie  to  show  that  the  cotart  has  juris- 
diction over  the  ward.^^  The  judgment,  however,  will  not  be 
sustained  if  the  record  fails  to  show  that  the  court  obtained 
jurisdiction  of  the  parties.  The  summons  and  service  thereof, 
if  served,  are  necessary  parts  of  the  record.  In  their  absence 
the  court  will  not  assume  that  the  court  below  had  j  urisdic- 
tion.^2  So  Tvhen  it  appears  from  an  inspection  of  the  record 
that  a  defendant  against  whom  a  personal  decree  or  judgment 
is  rendered;  was  at  the  time  of  the  alleged  service  without  the 
territorial  limits  of  the  court,  and  thus  beyond  the  reach  of  its 
process,  and  that  he  never  appeared  in  the  action,  the  presum]> 
tion  of  jurisdiction  over  his  person  ceases,  ^^ 
Parties  — 4 


§  11  junisDicTioN,  38 

1  Ex  parte  Bennett,  44  Cal,  88. 

2  Gov.  of  Ga.  V.  Madrazo.  1  Peters,  122. 

3  Allen  v.  Miller.  11  Ohio  St.  378. 

4  Cov.  Draw.  Co.  v.  Shepherd.  20  How.  231  ;  Adams  Exp.  Co.  v. 
Trego,  85  Md.  62 ;  Williams  v.  M.  K.  &  S.  Ry.  Co.  3  Dill.  272. 

5  Robertson  v.  Cease,  97  U.  S.  G48. 

6  Godfrey  v.  Terry,  97  U.  S.  174. 

7  Alter  v.  Rickett,  24  La.  An.  516. 

8  Stout  V.  Noleman,  30  Iowa,  414  ;  Kerviii  v.  Roberson,  49  Mo,  254. 

9  Kervin  v.  Roberson,  49  Mo.  254 ;  Lawson  v.  Cunningham,  34  Ga. 
530. 

10  Christian  V.  Bueal,  46  Miss.  674;  but  see  Drea  v.  Carrington,  32 
Ohio  St.  603. 

11  Merritt  v.  Home,  5  Ohio  St.  318. 

12  Carver  v.  Carver,  64  Ind.  196. 

13  Belcher  v.  Chambers,  5S  Cal.  640 ;  see  also  Pennoyer  v.  Neff,  95 
U.  S.  714  ;  N.  Y.  Life  Ins.  Co.  v.  Bangs,  il  The  Reporter,  826. 

§  11.  How  acquired.  — It  has  been  suggested  that  when  the 
United  States  was  interested  as  a  property  owner  in  the  subject- 
matter  in  controversy  in  a  suit,  that  the  court  could,  upon 
motion,  enter  an  order  fot  it  to  enter  its  appearance,  and 
plead  within  a  given  time,  ancf  direct  that  a  copy  of  the  order 
be  served  upon  the  district  attorney,  and  also  upon  the  attor- 
ney-general, or  some  other  government  officer,  and  that  if  it 
did  not  appear,  and  the  record  show  such  service,  that  it  could 
then  be  treated  like  any  other  person. ^  There  are  three  ways 
in  which  a  person  may  be  brought  into  a  court  of  civil  jurisdic- 
tion :  (1)  by  writ  of  summons,  executed  according  to  law  ;  (2) 
by  attachment  of  his  property,  and  making  publication  in  a 
newspaper  for  him;  (3)  by  publication  alone,  which  in  some 
cases  suffices  without  attachment  of  his  property.  It  is,  how- 
ever, always  the  privilege  of  a  defendant  to  expressly  waive  any 
or  all  of  these  modes,  and  come  into  court  voluntarily ;  he  is 
only  seen  in  the  eye  of  the  law  to  be  present  or  absent  by  what 
appears  upon  the  records  of  the  court. ^  Where  a  suit  in  equity 
is  brought  to  enforce  any  equitable  lien  or  claim  uix)n  real  or 
personal  property  in  the  district,  and  against  a  defendant  who 
is  not  an  inhabitant  of,  and  cannot  be  found  therein,  and  such 
defendant  does  not  appear  voluntarily  in  such  suit,  the  court 
may  make  an  order  directing  such  absent  party  to  appear  and 


39  jrEiSDiCTiox.  {}  11 

plead  on  a  day  certain  therein  to  be  designated ;  such  order 
shall  be  served  iipan  the  absent  party  wherever  found,  if  prac- 
ticable, and  if  not,  then  it  shall  be  published  in  such  manner 
as  the  court  du-ect.  Upon  failure  to  appear  after  such  service 
the  court  may  entertain  jurisdiction ;  '^  but  in  all  cases  brought 
to  enforce  or  cancel  personal  contracts,  or  to  recover  damages 
for  their  violation,  there  must  be  a  personal  service  of  process 
upon  the  defendant,,  or  he  must  voluntarily  appear.  The  de- 
fendant must  be  served  within  the  district,  and  until  such 
service  or  appearance  the  court  does  not  acquire  jurisdiction.* 
When  the  defendant  is  brought  within  the  district  by  means  of 
force  or  fraud  of  the  plaintiff,  and  served  with  process,  such 
service  will  be  set  aside.^  One  defendant  to  a  suit  cannot 
recover  judgment  against  a  co-defendant  without  a  cross-plead- 
ing and  service  of  process,  or  an  appearance  to  the  cross-plead- 
ing.^ Where  a  person  pending  suit  acquires  the  interest  of  the 
defendant  it  is  jjroper  to  make  him  a  party  by  a  supplemental 
bill.  In  general  it  is  not  abslutsly  necessary,  as  he  will  be 
bound  by  the  decree ;  but  when  the  transfer  is  involuntary  by 
act  of  the  law,  as  in  cases  of  assignee  in  insolvency,  etc.,  he 
should  be  made  a  party  in  this  manner.'  Where,  during  pen- 
dency of  suit,  defendant  (a  non-resident)  became  insane,  upon 
suggestion  of  that  fact  his  attorney  was  appointed  his  guardian 
ad  litem,  without  notice  to  his  general  guardian,  who  resided 
out  of  the  State.^  Where  an  infant  is  a  party  the  service  of 
process  d-pands  upon  the  statutes  of  the  various  States,  and 
there  seems  to  be  some  confusion  with  reference  thereto. 
Probably  the  better  practice  is  to  serve  the  infant  personally  if 
a  resident,  and  also  Ms  father,  mother,  or  guardian.''  If 
the  infant  is  a  non-resident  he  may  be  served  by  prblica- 
tion.i''  When  he  is  not  served  a  judgment  rendered  against 
Mm>  even  though  he  be  defended  by  guardian  ad  litem,  is 
void.^i 

1  Fifth  Xat.  Bank  r.  Long,  7  Biss.  503 ;  Elliott  v.  Van  Voorst,  3 
Wall.  Jr.  299. 

2  Straus  v.  Weil,  5  Cold.  124. 

3  Forsyth  v.  Pierson,  9  Fed.  Rep.  8C2. 

4  N.  Y.  Life  Ins.  Co.  v.  Bangs,  11  The  Reporter,  827 


§   12  JITKISDICTION.  40 

5  Blair  r.  Turtle,  11  The  Reporter,  :m  ;  Steig-?r  r.  Bonn,  5d  Hov\-. 
Pr.  496  ;  see  also  Shepard  v.  Goodheart,  5  111.  App.  575. 

6  Calvin  v.  Williams,  8  Bush,  346;  Com.  Bk.  v.  Buckingham,  12 
Ohio  St.  4(M. 

7  Williams  r.  Winans,  20  X.  J.  Eq.  31)5. 

8  Emery  v.  Parrott,  107  Mass.  103. 

9  McAnoar  v.  Epperson,  54  Tex.  225 ;  Ing-ersoll  r.  Ing-ersoll,  42  Mis.?. 
162  ;  Mcintosh  r.  Atkinson,  63  Ala.  241 ;  Hodges  i:  Wise,  16  Ala.  514. 

10  Ing-ersoII  r.  Ine:ersoI1.42  Miss.  162;  Hodges?-.  Wise,  16 Ala.  514; 
Clark  r.  Gilmer,  28  Ala.  265  ;  Winston  v.  McLendon,  43  Miss.  259. 

11  Moore  v.  Starks,  1  Ohio  -St.  371  ;  Mcintosh  r.  Atkinson,  63  Ala. 
241 ;  contra,  McAnear  v.  Epperson,  54  Tex.  22.5. 

§  12.  Attachment  and  publication.  —  When  a  non-resiclent 
is  a  iDarty  to  a  suit,  he  cannot  be  compelled  to  appear  and  sub- 
mit Limself  to  the  jurisdiction  of  the  court  in  absence  of  per- 
sonal or  constructive  service  within  the  jurisdiction  ;  ^  but  a 
State  may  subject  his  property  within  its  jurisdiction  to  the 
satisfaction  of  the  claims  of  its  citizens.  Every  State  owes 
protection  to  its  own  citizens,  and  when  non-i-esidents  deal 
with  them  it  is  a  legitimate  and  just  exercise  of  authority  to 
hold  and  appropriate  any  property  owned  by  such  non-resident 
to  satisfy  the  claims  of  its  citizens ;  it  is  by  virtue  of  the  State's 
jurisdiction  over  the  property  of  the  non-resident  situated 
within  its  limits,  that  its  tribunals  can  inquire  into  the  obliga- 
tions of  non-residents  to  its  citizens.  ^  Tlie  court  must  acquire 
jurisdiction  over  the  property,  and  its  seizure  or  that  Vhich  is 
equivalent  (in  this  case),  the  levy  of  attachment  upon  it,  is  the 
one  essential  requisite  of  jurisdiction  ;  without  it  the  court  can 
proceed  no  further.^  The  usual  way  to  warn  such  absent  i)ar- 
ties  is  by  advertisement.*  All  such  proceedings  are  in  deroga- 
tion of  the  common  law,  and  nothing  is  to  be  presumed  in  favor 
of  jurisdiction. 3  When  the  statute  provides  a  method  by  which 
property  can  be  reached,  it  is  not  only  to  be  strictly  followed, 
but  it  must  also  be  followed  to  the  exclusion  of  any  other 
method  not  clearly  provided."  So  where  the  statute  provides 
that  from  the  time  of  service  of  summons  the  court  is  deemed 
to  have  acquired  jurisdiction,  and  the  defendant  dies  before 
publication  is  completed,  the  court  acquires  no  jurisdiction 
through  it,  and  can  proceed  no  further  in  the  action,  except 
perhaps  to  direct  the  sheriff  to  abandon  his  levy.' 


41  JTIRISDICTIOK.  §   13 

1  Elliott  V.  Van  Voorst,  3  Wall.  Jr.  303;  X.  Y.  Life  Ins.  Co.  v. 
Bangs,  11  The  Reporter,  S27. 

2  Belcher  v.  Chambers,  53  Cal.  640;  Pennoyer  v.  Xeff,  95  TJ.  S. 
723. 

3  Cooper  r.  Revnolds,  10  Wall.  319;  and  see  Williams  v.  Welton, 
28  Ohio  .St.  469  ;  Pennoyer  v.  Xeflf,  95  U.  S.  723,  733. 

4  Elliott  V.  Van  Voorst,  3  Wall.  Jr.  303  ;  cases  cited  supra. 

5  Hallett  i\  Righters  13  How.  Pr.  46;  Thatcher  r.  Powell,  6 
Wheat.  12G;  Mcilinn  v.  Whelan,  27  Cal.  314. 

6  Grigsby  c  Barr,  14  Bush.  333 ;  compare  generally  Pennoyer  v. 
3Cefr,  95  U.  .S.  723;  Cooper  v.  Remolds,  10  Wall.  319,  and  cases  there 
cited  ;  Holly  v.  Bass,  63  Ala.  391 ;  Fontaine  v.  Houston,  5S  Ind.  316. 

7  Auerbach  v.  Maynard,  26  Minn.  423. 

§  13.  Publication  continuBd. — Non-residents  served  with 
process  by  publication  can  only  be  considered  as  in  court  for  the 
purposes  stated  or  necessarily  arising  out  of  the  ob.jec_  of  the 
bni  as  stated  in  the  order  of  publication.^  When  a  eop)  of 
the  publication  is  required  to  be  sent  to  the  defendant  by  maii, 
his  residence  being  shown,  a  sending  to  the  -postofl&ce  of  the 
defendant  is  not  necessarily  a  sending  to  daiendant  at  his  post- 
office.2  So  the  residence  being  shown  as  Goodwin,  Holmes 
County,  sending  t3  Goodwin  is  not  sufficient.^  Under  the 
Code  of  Iowa  it  was  held  that  an  .nfant  could  be  served  by 
pubhcation  in  the  same  manner  :.<3  an  adult.-  In  South  Caro- 
lina it  was  held  such  a  proceediiig  could,  not  be  accorded  with- 
out the  clearest  law  to  thdo  eflect.^  In  a  -proceeding  by  a 
guardian  to  sell  the  real  sstate  of  a  lunatic  to  pay  his  debts, 
etc.,  the  statute  (AYisconsui)  provides,  -the  order  of  the  county 
court  to  show  cause  why  the  application  for  such  license  shall 
not  be  granted,"  ecc  ,  shall  be  published,  etc.,  ....  and  a 
copy  thereof  servaa  upon  all  persons  interested  in  the  estate ; 
provided,  how::-ver,  that  if  all  persons  interested  shall  signify 
in  writing  then-  assent  to  such  sale,  the  notice  may  be  dispensed 
Tvith  —  helvi  that  so  far  as  the  rights  of  the  lunatic  were  con- 
cerned, .-.0  jurisdiction  of  the  court  attached  upon  the  filing  of 
the  guardiau"  petition  setting  forth  the  facts  required  by  stat- 
ute ;nat  the  pubhcation  of  notice  is  only  intended  for  the  pro- 
tection of  parties  having  adversary  interests  in  the  property, 
£.nd  was  not  essential  to  the  jurisdiction  of  the  court.^  In 
Mississippi  the  unknown  heirs  of  a  decedent,  when  necessary 


§    14  JURISDICTION.  42 

parties  to  a  proceeding,  may  be  made  such  by  publication,  as  in 
case  of  absent  defendants;  i.  e.,  describing  them  therein  as  the 
unknown  heirs  of  the  decedent.''  In  Illinois  such  publication 
was  held  to  be  insufficient  to  bring  the  known  heirs  of  decedent's 
wife  before  the  court. ^  As  a  general  rule  it  may  be  stated  that 
in  an  action  to  obtain  a  personal  judgment  for  the  payment  of 
money  against  a  non-resident,  jurisdiction  over  his  person  can- 
not be  obtained  by  a  service  of  process  by  publication. *♦ 

1  Fox  V.  Reynolds,  50  Md.  572. 

2  Holly  V.  Bass,  &}  Ala.  391 ;  Scorpion  S.  M.  Co.  v.  Marsano,  10  Xev. 
383. 

3  Paulling  v.  Creagh,  63  Ala.  401 ;  Smith  v.  Wells.  69  N.  Y.  602. 

4  Howard  v.  Entreken,  11  The  Reporter,  428 ;  see  also  Hodges  r. 
Wise,  16  Ala.  515. 

5  Bailey  v.  Whaley,  14  Rich.  82. 

6  Mohr  r.  Mannierre,  101  U.  S.  421. 

7  Reed  v.  Gregory,  46  Miss.  746;  compare  Piirdy  v.  Henslee,  97 
111.  m. 

8.  Piirdj-  V.  Purdy,  97  III.  394  ;  compare  also  City  of  New  Orleans  v. 
Heirs  de  St.  Romes,  28  La.  An.  17. 

9  Belcher  v.  Chambers,  53  Cal.  640 ;  Pennoyer  v.  Xeff,  95  U.  8. 
714-727;  Purrott  r.  Ala.  Ins.  Co.  11  The  Reporter,  425;  compare  also 
Clayton  r.  Clayton,  4  Colo.  415:  Lutz  v.  Kelly,  47  Iowa,  310;  compare 
generjillv  Foster  ik  Henderson,  54  Iowa,  220;  Collinson  r.  Teal,  4 
Sawy.  243 ;  Peck  v.  Cook,  41  Barb.  551 ;  Clarke  v.  Boreele,  21  Hun,  595. 

g  14.    Of  the  appearance  of  a  party  to  the  action. —Any 

appearance  of  a  party  in  a  cause,  save  for  the  purpose  of  taking 
advantage  of  a  want  of  jurisdiction,  is  a  general  appearance  to 
the  action!  —  i_  p^^  ^ny  motion  which  calls  into  action  the 
powers  of  a  court  for  any  purpose  except  to  decide  upon  its 
own  jurisdiction. 2  Any  motion  which  asks  for  relief  which 
can  only  be  gi-anted  upon  the  hypothesis  that  the  court  has 
jurisdiction  of  the  cause,  and  of  the  person^  filing  a  general 
demurrer,  is  an  appearance.*  So,  also,  an  indorsement  upon 
the  original  bill  in  the  following  words—  "I  hereby  waive  the 
necessity  of  publication  of  this  bill,  and  agree  that  the  service 
shall  be  considered  as  perfected,  and  no  objection  to  be  made, 
I  claiming  the  right  to  the  same  length  of  time  to  plead  as  in 
case  of  non-residents;  signed,  D.  M.  S.,  Sol.  for  J.  M.  L."  — 
was  held  a  general  appearance,^  filing  a  plea  in  abatement.** 
So  in  Kentucky  prosecuting  an  appeal,^  or  writ  of  error, ^  but 


43  JTEISDICTIOX.  §  14 

appearing  for  the  sole  purpose  of  presenting  the  question  as  to 
■whether  the  court  has  obtained  jurisdiction  over  the  person  of 
defendant,  is  not  a  general  appearance.''  So  where  an  attach- 
ment is  sued  for  the  purpose  of  bringing  a  party  into  court,  as 
■well  as  to  impound  his  property:^"  but  if  the  attachment  is 
merely  ancilliary  to  the  suit,  and  used  only  for  the  purpose  of 
holding  propirty  in  the  custody  of  the  court,  in  such  case  it 
may  bo  abated,  leaving  the  plaintiff  to  j)rocced  as  if  in  the  first 
iastance  ho  had  commenced  by  summons  without  attachment.'^ 
So  filmg  written  objections  to  the  manner  of  service  of  pro- 
cess is  not  a  general  appearance ; '^  nor  is  the  filing  of  motion 
to  dismiss  the  action  for  want  of  service,'^  or  that  no  summons 
had  been  issued  withm  the  time  required  by  law.'*  An  appear- 
ance will  be  taken  to  bo  general  unless  the  contrary  appears. '^ 
The  motion  should  be  limited  to  the  specific  pui-pose.'*'  The 
following — "now  comes  the  above  named  defendant  and  ap- 
pears in  the  said  action  for  the  sole  pui-pose  of  making  a  motion 
to  quash  the  summons  in  and  dismiss  said  action"  —  was  in 
California  held  sufficient  to  allow  defendant  to  be  heard  upon 
the  motion.''  A  defendant  after  service  must  either  appear 
and  go  to  trial  or  quit  the  field  altogether ;  he  cannot  occupy 
an  ambiguous  attitude.'** 

1  Aultman  v.  Steinan,  8  Xeb.  112;    Coad   ?-.   Coart.  11  Wis.  26; 
Foote  V.  Richmond,  42  Cal.  443. 

2  Wood  r.  Youug,  33  Iowa,  lOS;  Cropsey  r.  Wiggsnhorn,  3  Neb. 
116. 

3  Coad  V.  Coad,  41  Wis.  26. 

4  Kegg  V.  Welden,  10  Ind.  i50. 

5  Jones  r.  Beverly,  45  Ala.  16.), 

6  Southard  v.  Steele,  3  Mon.  447:  contra,  Sherrv  r.  Bevine,  11 
Heisk.  725  ;  Baily  v.  Shrader,  34  Ind.  261. 

7  Culton  V.  Commonw.  9  Bush,  703. 

8  Lawlins  v.  Lackey.  6  Mon.  70. 

9  Baily  v.  Schrader.  34  Ind.  261 ;  Huff  v.  Shenard,  .53  :Mo.  246 ;  Mc- 
::sab  V.  Bennett,  66  111.  15a ;  Cropsey  v.  Vv^iggeiiliorn,  3  Ti^eb.  116. 

10  Sherry  v.  Devine,  11  Heis::.  T25. 

11  Ivruger  v.  Stayton,  11  Ileis'c.  727. 

12  Crary  v.  Barbur,  1  Colo.  174. 

13  rs'ye  V.  Liscomber,  21  Pick.  266. 

14  L.  G.  Min.  Co.  r.  Sheplar,  Si  Ca!.  245. 


g   15  JT'EISDICTIOX.  44 

15  Despler  v.  Foster.  1  Morr.  Trans.  532. 

16  Flake  v.  Carson,  33  111.  oilG. 

17  Lander  v.  Fleming,  47  Cal.  615. 
13  Tower  v.  Moore,  52  Mo.  120. 

§  15.  Who  may  appear  in  an  action,  and  how  he  may 
appear. — As  a  general  rule  any  defendaut  may  voluutarily 
appear  in  an  action,^  either  legal  or  equitable,"'^  with  or  without 
the  consent  of  the  plaintiff,^  in  propria  persone,^  or  by  attor- 
ney.^ He  cannot,  however,  as  a  matter  of  right,  appear  both 
in  his  own  person  and  by  counsel.*^  The  right  is  alternative,  if 
he  appears  by  counsel ;  he  must  be  heard  through  him,''  This 
rule  applies  to  corporations  with  this  exception,  they  can  only 
appear  by  counsel.*^  A  lunatic  or  idiot  appe  .rs  by  his  guardian 
jr  committee ;  if  also  an  infant,  by  guardian  ad  litem ;  ^  he  can- 
not appear  by  attorney.^"  An  infant  cannot  appear  and  defend 
a  suit  in  person,  nor  appoint  an  attorn^^  to  do  so  for  him. 
His  rights  are  under  the  protection  of  the  court,  which  appoints 
a  proper  person  to  defend  for  him.^^  His  guardian  cannot 
enter  an  appearance  for  him,i2  j^qj.  c^n  he  be  brought  in  by 
stipulation  cf  attorneys. ^^  When  there. are  several  defendants 
in  an  action,  one  may  in  absence  of  instructions  to  the  con- 
trary enter  an  appearance  and  defend  for  all ;  i*  but  where  only 
part  are  served  with  process,  and  an  appearance  is  entered  by 
an  attorney  for  "defendants,"  it  will  be  presumed  to  be  an 
appearance  for  those  only  who  are  served  with  process. ^^  Such 
appearance,  however,  was  in  California  held  to  include  defend- 
ants not  served  as  well  as  those  served.^''  Where  counsel  ap- 
pear specially  for  certain  defendants,  his  signature  to  pleadings 
after,  "for  defendants,"  will  be  construed  as  limited  to  those 
for  whom  he  expressly  appeared.  ^^ 

1  Higgin  V.  Rockwell,  2  Duer,  6.52;  Davidson  v.  Thornton,  7  Pa. 
SL.  13:3. 

2  Nelson  v.  Moon,  3  McLean,  S20. 

3  iOlls  r.  Belts,  8  Mon.  B.  427. 

4  Henk  r.  Todhunter,  7  Har.  &  J.  278. 

5  Hill  V.  Mendenhall,  21  AVall.  455;  Everett  ?■.  Warner  Bank,  10 
The  Reporter,  275;  Dyer  i'.  North,  44  Cal.  15J;  Hightower  r.  Haw- 
thorn, 1  Hemp.  43. 

6  Talbot  V.  Talbot,  2  Marsh.  J.  J.  4. 


io  JTKISDICTION.  §    16 

7  Board  of  Commrs.  v.  Younger,  29  Cal.  149. 

8  Attv.-r4enl.  v.  Guard  Mut.  L.  Ins.  Co.  77  X.  T.  274 ;  >'ixou  v.  S. 
W.  Ins.  Co.  47  lU.  444  ;  State  Bank  v.  Bell,  5  Blackf.  127. 

9  Rogers  v.  McLean,  34  2s.  Y.  .>12  ;  compare  Weber  r.  WeitlLng,  18 
X.  J.  Eq.  442. 

10  Jelly  V.  Elliott.  1  Cart.  120. 

11  Winston  r.  McLendon,  43  Miss.  257 ;  Kennedy  v.  Gaines,  51  Miss. 
629;  Mclntosch  r.  Atkinson,  63  Ala.  242;  Bonnell  v.  Holt,  89  111.  77; 
Green  r.  Harrison,  3  Sneed,  132. 

12  Greenman  v.  Harvey,  53  111.  289 ;  Kennedy  v.  Gaines^  51  Miss. 
627;  compare  Cowan  »•.  Anderson,  7  Cold.  290;  Merritt  '•.  Home,  5 
Ohio  St.  31S  ;  contra,  Ankenv,  v.  Blackiston,  7  Oreg.  412 ;  Smith  i-.  Mc- 
Donald, 42  Cal.  487  ;  Walker  v.  Veno,  6  S.  C.  462. 

13  INlcDermaid  v.  Kussell,  41  111.  490. 

14  Scott  i:  Larkin,  13  Vt.  114. 

15  Gardner  ?'.  Hall,  29  111.  278;  Whitney  r.  SUver,  22  Vt.  637; 
Doughertv  r.  Shown,  I  Heisk.  303;  compare  Kadcliff  r.  Xoves.  53 
111.  320  ;  Humphrey  v.  Xewhall,  48  111.  117. 

16  Rowland  v.  Coyne,  55  Cal.  3 ;  same  effect,  Ken  von  v.  Shreck.  52 
111.  384. 

17  Spangel  v.  Bellinger,  42  Cal.  149. 

§  16.  Effect  of  appearance  —  "Waiver,  etc.  — The  volun- 
tary appearance  of  a  defendant  in  an  action  is  equivalent  to  a 
personal  service  of  process  upon  him,i  and  is  a  waiver  of  any 
defect  therein ;  2  in  fact,  when  the  defendant  voluntarily  ap- 
pears it  does  not  matter  whether  summons  is  good,  service 
defective,  or  whether  there  has  been  any  process  in  the  case.'* 
When  a  party  appears  specially  to  object  to  the  jui'isdiction  of 
the  court  he  should  confine  his  motion  to  that  question  alone.* 
Such  appearance  will  not  give  the  court  jurisdiction  over  him.^ 
Nor  does  he  abandon  his  objection  by  contesting  subsequent 
proceedings  in  the  case.**  While  a  general  appearance  will 
operate  as  a  waiver  of  service,  etc.,  it  has  no  retrospective 
effect.  It  operates  from  the  time  of  appearance,  and  dots  not 
waive  the  bar  of  the  Statute  of  Limitations  when  the  statutory 
time  has  elapsed  prior  to  its  entry."  Neither  does  it  waive  time 
to  plead. s  It  however  waives  objection  that  the  bill  is  not 
signed  either  by  complainant  or  his  counsel.**  If  sued  by  a 
name  materially  different  from  his  own,  defendant  must  object 
at  time  of  his  appearance. i"  So,  also,  if  a  non-resident  who 
is  sued  enters  his  appearance  in  the  action  he  cannot  afterward 
object    to  the   jurisdiction  of   the  court  over  his    person. ^^ 


§    17  JURISDICTION.  46 

"Where  a  cause  is  irregularly  transmitted,  by  consent  of  parties, 
from  an  inferior  to  a  superior  court,  and  the  superior  court 
had  original  jurisdiction  of  the  subject-matter  of  the  suit,  an 
appearance  in  the  superior  court  will  waive  the  irregularity.^^ 
The  appearance  of  a  defendant  upon  motion  to  assess  damages 
(after  his  default  has  been  entered  in  the  cause),  and  partici- 
pating in  the  selection  of  the  jury  offering  evidence,  etc.,  waives 
all  objection  to  service  of  process  ;^"*  but  will  not  cure  a  void 
summons,  or  waive  objections  thereto. ^^ 

1  Habich  v.  Folger,  20  Wall.  7  ;  Citv  of  New  Orleans  v.  Walker,  23 
La.  An.  803  ;  K.  R.  Min.  Co.  v.  Walker,  i  Orpg.  :«3  ;  Fla.  Ry.  Co.  v.  Gens- 
ler.  14  Fla.  125  ;  Coad  v.  Coad.  41  Wis.  26  ;  Bank  of  Vailev  v.  Bank  of 
Berkelej^  3  W.  Va.  391 ;  Albertson  v.  Williams,  23  Ind.  613. 

2  Kane  v.  The  People,  4  Neb.  512 ;  Rice  v.  Q.  &  St.  Louis  Rv.  Co.  3 
Mo.  App.  33  ;  Free  v.  Haworth,  19  Ind.  404. 

3  Wasson  v.  Cone,  86  111.  47 ;  Baldwin  v.  Murphy,  82  111.  489. 

4  Porter  v.  C.  &  N.  W.  Ry.  Co.  1  Neb.  15 ;  Aultnam  v.  Stenam,  8 
Nev.  109. 

5  McNab  V.  Bennett,  66  111.  161 ;  Simcock  v.  Nat.  Bank,  14  Kan.  530 ; 
see  Marin  v.  Thierry,  29  La,  An.  362 ;  also  Harkness  v.  Hyde,  98 
U.  S,  479. 

6  Harkness  v.  Hyde,  98  U.  S.  479 ;  Lyman  v.  Milton,  44  Cal.  635. 

7  Etheridge  v.  Woodley,  83  N.  C.  13. 

8  Harker  v.  Fahie,  2  Oreg.  89 ;  Maud  v.  Wear,  55  Cal.  25. 

9  Turner  v.  Junkins,  79  111.  2.30. 

10  McCarthy  v.  McCarthy,  66  Ind.  133 ;  V.  &  M.  S.  Nav.  Co.  v. 
U.  S.  1  Taney,  420. 

11  Varner  v.  Radcliflfe,  59  Ga.  449;  Jones  v.  Beverly,  45  Ala.  162; 
Kelsey  v.  Penn.  Ry.  Co.  14  Blatchf.  89. 

12  Chester  v.  Embree,  1  Peck,  370 ;  Elkins  v.  Sams,  3  I-Iayw.  44 ; 
same  connection,  compare  Coull  v.  Keener,  18  111.  65. 

13  Ryan  v.  Driscoll,  83  111.  417. 

14  Briggs  V.  Sneghau,  45  lud.  18. 

§  17.  Withdrawal  of  appearance,  its  effect.  — When  a 
party  has  appeared  in  an  action,  his  appearance  can  only  be 
withdrawn  upon  permission  of  the  court,  and  the  privilege  will 
only  be  granted  upon  the  exercise  of  sound  legal  discretion.^ 
Such  permission  will  not  be  granted  simply  upon  a  showing 
that  the  attorney  who  entered  the  appearance  had  no  authority  ; 
the  defendant  himself  not  disavowing  the  right  to  appear. ^ 
The  appearance  of  a  party  may  bo  withdrawn  even  in  the 
appellate  court.^    The  filing  of  a  plea  is  both  an  appearance 


47  JUEISDICTION.  §  17 

and  a  defense,  but  the  withdrawal  of  the  plea  does  not  have 
the  effect  of  withdrawing  the  appearance  of  the  defendant,  and 
requiring  the  plaintiff  to  take  steps  to  bring  him  again  within 
the  jurisdiction  of  the  court.  He  is  not  by  a  withdrawal  of  the 
plea  out  of  court,*  but  if  he  withdrew  his  appearance  his  plea 
goes  with  it.  Without  an  appearance  a  party  cannot  answer, 
nor  can  an  answer  stand  where  there  is  no  appearance  ;  there- 
fore if  the  appearance  is  withdrawn,  and  no  new  appearance 
filed,  and  time  for  answer  has  expired,  default  is  proper,^ 

1  The  X.  A.  cS:  S.  Ry.  Co.  v.  Combs,  13  Ind.  490 ;  Rhode  Island  r. 
Mass.  12  Peters,  760. 

2  Mallett  V.  Girard,  3  Edw.  Ch.  392. 

3  Rhode  Island  v.  Mass.  12  Peters,  160 ;  U.  S,  v.  Yates,  6  How.  60S. 

4  Creighton  i\  Kerr,  20  Wal.  13 ;  see  also  Evans  v.  lies,  7  Ohio  St. 
236  ;  E]  ^red  v.  Bank,  17  Wall.  5-51. 

5  Sloan  v.  Witbank,  12  Ind.  445;  to  same  effect  see  Creighton  ?'. 
Kerr,  20  Wall.  13;  Eldred  v.  Bank,  17  Wall.  .551;  compare  Abdil  v. 
Abdll,  33  Ind.  460 ;  contra,  ilichew  v.  McCoy,  3  Watts  &.  S.  501. 


§18  XECESSAKY   AND   PKOPEE  PARTIES.  48 


CHAPTEE  III. 

XFXESSAKY   AND   PKOPER   PAKTIES. 

g  IS.  What  persons  should  be  made  parties  to  an  action. 

i  19.  Exception  to  the  general  rule. 

§  20.  Who  are  not  necessary  parties  to  a  suit. 

g  21,  Who  are  necessarj'  or  proper  parties  in   actions  relating  to 
estates  of  (a),  insane  persons  (b),  minors  (c)   married  women. 

§  22.  To  the  estates  of  decedents. 

i  23.  To  trust  estates. 

§  24.  In  suits  by  creditors,  assignees,  sureties. 

i  '25.  In  suits  by  co-partners'  corporations. 

§  26.  In  suits  relating  to  land  and  laud  titles. 

§  27.  In  suits  to  enforce  liens. 

§  23.  In  bOls  to  redeem,  for  partition,  injunction. 

§18.  What  parsons  should  be  made  parties  to  an  action. 
— At  law  as  a  disputed  issue  is  alone  contested,  only  those  i^er- 
sons  who  are  the  immediate  dispr.tants  should  be  parties  to 
the  action,  and  they  alone  will  be  bound  by  the  decision  ;  but 
in  equity  a  decree  is  asked  and  not  a  decision  merely ;  it  is 
requisite,  therefore,  that  all  persons  whose  interests  may  be 
affected  by  the  proposed  decree,  or  whose  concurrence  is  neces- 
sary to  a  complete  determination  of  the  suit,  should  be  parties, ^ 
in  order  that  there  may  be  an  end  of  litigation. ^  All  persons 
having  a  legal  or  equitable  interest  in  the  subject-matter  of  the 
suit  must  be  made  parties,^  either  as  plaintiff  or  defendants  ;  * 
all  persons  having  an  interest  in  the  object  of  the  bill;^  the 
question  must  depend  in  a  great  measure  upon  the  object  as 
well  as  the  subject  of  the  bill,  the  relief  sought,  the  privity  be- 
tween the  parties,  and  the  manner  in  which  their  several  inter- 
ests may  have  arisen.^  Generally  speaking,  all  persons  whose 
interests  are  in  issue  and  would  be  affected  by  the  decree 
should  be  made  parties."  There  are  qualifications  of  the  gen- 
eral rule  arising  oiit  of  public  policy,  and  the  necessities  of 
particiilar  cases.     The  true  distinction  appears  to  be  as  follows : 


•iD  NECESSATvY   A:0   PRC»PER   PARTIES.  §    If 

First,  when  a  person  will  be  directly  affected  by  a  decree  be  is 
B.n  indispensable  party. *^  Second,  where  a  person  is  interested 
in  the  controversy,  but  will  not  be  directly  affected  by  a  decree 
in  his  absence,  he  is  a  necessary  parti/,  and  should  be  joined  if 
possible ;  the  court  will  not  proceed  to  decree  if  he  can  be 
reached.**  Thirel,  where  he  is  not  interested  in  the  controversy 
between  the  immediate  litigants,  but  has  an  interest  in  the 
subject-matter  that  may  be  conveniently  settled  in  the  suit  and 
thereby  prevent  further  litigation,  he  may  be  a  party  or  not  at 
the  option  of  complainant.^"  To  constitute  a  necessary  party 
to  a  suit,  there  must  exist  an  interest  in  fact,  or  such  an  agency 
or  trust  in  rijht  of  another  as  to  make  his  recognition  as  a 
party  essential  to  the  security  of  the  principal  or  cestui  que 
trust  ^^ 

1  Tobin  V.  Walkinshaw,  1  :McA11.  23. 

2  ■Williams  v.  Bankhea-l,  V.)  Wall.  571 ;  Williams  v.  Russell,  19  Pick. 
16),-  Stevenson  v.  Austin,  3  Met.  480;  Hicks  v.  Campbell,  19  X.  J.  Eq. 
Ii5;  Hill  V.  Proctor,  10  W.  Va.  78;  Story  r.  Livingston.  13  Peters,  375; 
Hawkins  v.  Chapman,  '^6  Md.  99;  Xewcombe  v.  Horton,  13  Wis.  5(53; 
rule  under  Code  practice,  Kimball  ?-.  Connor,  3  Kan.  4:^0;  James  v. 
Williams,  31  Ark.  177  ;  Inglehart  v.  Moore,  21  Tex.  504. 

3  Wyche  v.  Green,  32  Ga.  344;  Crocker  v.  Higgins,  7  Conn.  316; 
Harris  r.  Cornell,  80  111.  64. 

4  McCaleb  v.  Criclifiela,  5  Heisk.  231 ;  McCleUan  v.  McClellan,  65 
Me.  500. 

5  United  States  r.  Parrott,  1  McAll.  279  ;  Van  Kueren  v.  McLaugh- 
lin, 21  2> .  J.  Kq.  IGo ;  MuUins  v.  McCandless,  4  Jones  Eq.  42S. 

6  Walter  v.  Biehl,  38  Md.  216. 

7  Cassidv  v.  Shimmin,  122  Mass.  409;  State  v.  Sanderson,  54  Mo. 
203;  Bittinger  v.  Bell,  65  Ind.  452;  Bell  v.  Woodward,  42  X.  H.  189; 
Gilmore  v.  Johnson,  14  Ga.  636. 

8  Board  Supervisors  v.  Wallbridge,  .38  Wis.  183  ;  Mallow  v.  Hinde, 
12  Wheat.  193 ;  Harris  v.  Cornell,  80  111.  65  ;  Lewis  v.  Elrod,  38  Ala.  21 ; 
Abbott  r.  A.  H.  R.  Co.  4  Blatchf.  492;  Lynch  v.  Rotan,  19  111.  20; 
Robertson  v.  Carson.  19  Wall.  94. 

9  Hardi!ig  v.  Handv,  11  Wheat.  132  ;  Hicks  v.  Campbell.  19  X,  J. 
Eq.  136;  compare  Ches.  &  O.  Can.  Co.  v.  Blair,  45  Md.  103. 

10  Wormslev  v.  Wormslev.  8  Wheat.  422,  and  cases  cited  note  a ; 
Williams  r.  Bahkhead,  19  Wall.  571 ;  Shields  v.  Barron,  17  How.  i;J9; 
Tobin  V.  Walkinshaw,  1  McAlI.  31 ;  BIrdwell  r.  Butler,  13  Tex.  Ml. 

11  Baker  v.  Rowan,  2  fetewt.  &  P.  353. 

§  19.    Excsptions  to  the  general  rule.  — The  rule  that  aU 
persons  having  an  interest  in  the  suit  should  be  made  parties  is 
not  inflexible.     It  is  a  rule  of  convenience,  adopteel  by  courts 
Parties  — o 


§   19  NECESSARY  AND  PKOPEE  PASTIES.  50 

of  chancery  to  shorten  litigation,  to  prevent  doing  business  by 
halves,  and  may  be  dispensed  with  when  impracticable  or  very 
inconvenient ;  1  as  when  such  persons  are  very  numerous, 2  or 
are  unknown,-*  or  are  dead  and  their  representatives  arc  un- 
known,* or  arc  insolvent,^  or  beyond  the  jurisdiction  of  the 
court,''  and  the  fact  is  stated  in  the  bill  and  proved.^  This 
latter  ground  of  exception  is  peculiarly  applicable  to  suits  in 
equity  in  the  courts  of  the  United  States,  and  the  doctrine 
ordinarily  laid  down  on  this  point  is  that  when  the  persons 
who  are  out  of  the  jurisdiction  are  mere  passive  objects  of 
the  judgment,  or  their  rights  are  merely  incidental  to  those  of 
the  parties  before  the  court,  then,  inasmuch  as  a  complete 
decree  may  be  obtained  without  them,  they  may  be  dispensed 
with ;  but  if  such  absent  persons  are  to  bo  active  in  the  per- 
formance or  execution  of  the  decree,  or  if  ihey  have  rights 
wholly  distinct  from  those  of  the  other  parties,  or  if  the  decree 
ought  to  be  pursued  against  them,  then  the  court  cannot  prop- 
erly proceed  to  a  determination  of  the  whole  case  without  their 
being  made  parties.*^  The  rule  being  a  rule  of  convenience, 
courts  will  not  allow  it  to  be  so  applied  as  to  defeat  the  very 
purpose  of  justice  if  they  can  dispose  of  the  merits  of  the  case 
before  them  without  prejudice  to  the  rights  of  other  persons 
who  are  not  parties,  or  if  the  circumstances  of  the  case  render 
the  application  of  the  rule  impracticable.^  To  enable  the 
court  to  proceed  in  absence  of  necessary  parties,  the  riglit  to 
be  asserted  or  protected  must  exist  against  all,  or  the  obliga- 
tion sought  to  be  enforced  must  be  common  to  all.^^  It  is  not 
sufficient  to  allege  in  the  pleadings  that  other  persons  are  so 
numerous  that  it  would  be  impracticable  to  bring  them  all 
before  the  court;  but  the  nature  of  their  common  interest 
must  appear  to  be  such  as  would  entitle  them,  were  they  all 
before  the  court,  to  maintain  the  action  in  their  own  right,  or 
in  their  own  names  ;'i  anel  a  sufficient  number  of  the  persons 
interested  to  represent  the  rights  of  all  must  bo  before  the 
court. ^2  The  plaintiff  who  has  omitted  to  make  such  persons 
parties,  when  as  the  case  stands  there  appears  no  reason  why 
they  should  be  parties,  nor  why  because  of  their  omission 


51  N-ECESSABY  A>T)  PROPER  PARTIES.  §   20 

relief  shoulcl  bo  denied,  cannot  set  up  the  fact  of  tlieir  omis- 
sion to  defeat  the  equitable  protection  asked  by  the  defendant.^' 

1  Donald  r.  Plumb,  8  Conn.  457 ;  State  v.  Burkhardt,  oO  :Mo.  78  ;  see 
Elnni  V.  Garrard,  2o  Ga.  557  ;  East  Rome  Town  Co.  v.  Xagle,  bi  Ga.  473, 

2  Board  Supervisors  v.  Wallbridge,  'S8  Wis.  188 ;  Gorman  v.  Rus- 
sell, 14  C.il.  oi';  Darling  v.  Osborne,  51  Vt.  153;  Dana  v.  Brown,  1 
Marsh.  J.  J.  :i06. 

3  Stevenson  v.  Austin.  3  Met.  480 ;  McCaleb  v.  Critchfield,  5  Heisk. 
291;  Ryan  r.  Lynch,  G3  111.  165;  Hojde  r.  Moore,  4  Ired.  Eq.  177;  In- 
gram V.  Lanier,  1  Hayw.  (X.  C.)  253 ;  Behzeiu  v.  Lenoir,  1  Car.  Law 
Rep.  5W. 

4  Davis  ?•.  Hoopes,  33  IMIss.  183 ;  St.  John  v.  Hardwick,  11  lud.  252. 

5  Vratts  r.  Gayle,  20  Ala.  824  ;  Burroughs  v.  Lott,  10  Cal.  1-6. 

6  Cassidv?'.  Shimmin,  13C  Mass.  410;  I'nited  States  v.  Parrott,  1 
McAIl.  280 ;  McCaleb  v,  Critchfield,  5  Heisk.  231. 

7  Yann  r.  Hargett,  2  Dev.  &  B.  Eq.  36. 

8  Grav  v.  Larrimore,  2  Abb.  V.  S.  555 ;  United  States  v.  Parrott,  1 
McAIl.  250;  ::*.rallow  ?'.  Hinde,  12  Wheat.  194;  Barney  r.  Baltimore,  6 
Wall.  285 ;  McPike  v.  Wells,  54  Miss.  145. 

9  United  States  r.  Parrott,  1  McAll.  280 ;  Willeik  v.  Morris  C.  & 
B.  Co.  3  Green  Ch.  338. 

10  Reid  V.  The  Evergreens,  21  How.  Pr.  321 ;  Ronton  v.  Brooklvn, 
15  Barb.  oX. 

11  Habi?ht  v.  Pemberton.  4  Sand.  657 ;  also  Hammond  v.  H.  R.  Q, 
&  M.  Co.  20  Barb.  330 ;  Roane  v.  Pickett,  7  Ark.  413. 

12  Darlir.g  v.  Osborne.  51  Vt.  1^  ;  Reid  v.  Evergreens,  21  How.  Pr, 
azi ;  Stinsou  v.  Lewis,  36  Vt.  93. 

13  Woodruff  r.  Depae,  14  N.  J.  Eq.  176. 

§  20.  Who  are  not  necessary  parties  to  tne  suit. — A  per- 
son whose  interest  is  contingent,  depending  upon  the  exercise 
of  his  own  discretion,  and  who  can  in  no  respect  be  affected  by 
the  suit  in  the  exercise  of  that  discretion,  is  not  a  necessary 
party  to  the  proceeding.^  So  a  person  need  not  be  made  a 
party  Trho  has  no  possible  interest  in  the  fund  in  controversy, 
and  particularly  when  there  is  no  defense  that  he  alone  or  in 
conjunction  with  defendant  could  interpose  to  defeat  the  claim 
of  plaintiff,  which  defendant  alone  could  not,  with  at  least 
equal  propriety  and  equal  cffact,  introduce. ^  A  nominal  jmrty 
to  a  contract  who  has  assigned  all  his  interest  will  not  be 
required  as  a  party,  if  the  court  can  see  in  the  particular  case 
that  there  exists  no  necessity  for  the  joinder  of  such  person  on 
that  account.-*  When  property  the  subject  of  a  suit  is  trans- 
ferred pending  the  litigation  by  a  party  thereto,  the  rights  of  the 


§  21  >-ECESSARY  AXD   PROPER  PARTIES.  52 

other  party  a:?  a,  rule  are  not  affected  tliereb3\  If  the  transfer 
is  voluntary,  the  alienee  may  be  joined  or  not  at  the  election  of 
the  complainant ;  •*  but  if  involuntary,  as  by  operation  of  law,  he 
must  be  made  a  party.^  A  person  need  not  be  made  a  plaintiff 
in  whom  there  exists  no  interest,  and  one  from  whom  nothing 
is  demanded  should  not  be  made  defendant.^  In  loAva  it  has 
been  held  that  in  case  of  a  road  district,  where  no  law  declared 
it  to  be  a  body  corporate,  capable  of  suing  or  being  sued,  and 
there  being  no  law  authorizing  it  to  sue  or  making  it  liable  to 
a  civil  action,  such  road  district  could  not  be  a  party  to  a 
suit  cither  as  a  corporation,  quasi  or  otherwise.^  So  in  Isorth 
Carolina,  where  the  legislature  deprived  a  board  of  township 
trustees  of  its  existence  as  a  municipal  corporation,  it  could 
not  thereafter  be  a  party  to  a  suit.^ 

1  Vallette  v.  W.  V.  Canal  Co.  4  McLean,  1C6. 

2  Taylor  v.  Plosick,  13  Kan.  526. 
.  3    Day  v.  Cummings,  10  Vt.  439. 

4  Bennett  v.  Calhoun  Assoc.  9  Rich.  Eq.  177 ;  Darlin:?  v.  Osbc7:ie, 
51  Vt.  1.33;  Godden  v.  Vanghn,  14  Graft.  126;  Ufibrd  v.  Wells,  52  Tox. 
61');  Harmon  v.  Byron,  11  V/.  Va.  513;  Steele  v.  Taylor,  1  Minn.  278; 
Pond  V.  Clark,  24  Conn.  3S4  ;  Staclcett  v.  Goodman,  47  Md.  54. 

5  Sedgwick  v.  Cleveland,  7  Paige,  2J0;  De  Bell  v.  Foxworthj-,  9 
Mon.  B.  231. 

6  Kerr  v.  Watts,  1  AVheat.  553;  Goodman  v.  Moore,  22  Ark.  l';7; 
McKnight  v.  Watkins,  G  Mo.  App.  118  ;  Planson  v.  Harrell,  56  Miss.  2CJ. 

7  White  V.  Boad  District,  9  Iowa,  202. 

8  Wallace  v.  Trustees,  84  N.  C.  164. 

§  £1.  Who  are  necessary  cr  proper  per  ties  in  rxticns 
relwti"f^  to  estates  of—  (a)  insane  persons,  (b)  miners,  (c) 
married  vomen. —  (;;)  Insane  persons.  In  a  si:it  in  per- 
sonam in  equity  a  lunatic  should  not  be  deemed  an  indispen- 
sable though  he  is  a  proper  party ;  ^  but  where  the  individual 
who  is  the  committee  has  a  personal  interest  in  the  contro- 
versy, and  where  such  interest  may  or  necessarily  must  conflict 
with  that  of  the  lunatic,  the  latter  should  be  a  party.^  So  also 
in  an  action  for  partition  of  land^  in  ejectment,-  and  generally 
he  is  properly  made  a  party  to  all  suits  concerning  Lis  prop- 
erty, unless  it  is  otherwise  provided  by  statute.^  The  rule 
seems  to  be  the  same  in  law  as  in  equity,  and  there  is  no  dis- 


53  N-ECESSAKT  AST)   PEOPEK  PAETIES.  g  21 

tinction  between  real  and  personal  actions.^  (h)  Jlinois  must 
be  x^arties  to  all  suits  by  which  their  right  in  property  is  sought 
to  be  affected.'  The  general  guardians  of  such  persons  are 
also  necessary  parties  to  such  suits. "^  When  an  action  is 
brought  by  an  infant  ward  against  his  guardian  for  an  account, 
all  other  persons  who  are  interested  in  the  general  fund  are 
necessary  parties ;  ^  the  surety  ought  also  to  be  a  party ;  ^"  but 
the  heirs  of  a  former  guardian  are  not  necessary  parties  to  a 
bill  by  the  subsequent  guardian  and  ward  against  the  executor 
and  sureties  of  the  former  guardian  for  a  settlement. ^^  In  an 
action  upon  a  contract  made  by  a  guardian  for  boarding  and 
clothing  his  ward,  plaintiff  may  sue  the  guardian  alone  ;^2  -^-jj^ 
in  an  action  by  a  guardian  to  rescind  a  contract  made  by  his 
ward  for  the  purchase  of  land,  the  ward  is  a  necessary  party. ^^ 
(c)  Married  tcoraen.  A  married  woman  is  a  necessary  party 
to  an  action  only  from  the  time  she  is  ordered  to  answer  sepa- 
rately ;  1*  she  is  a  necessary  party  to  suits  brought  to  subject 
her  separate  estate  to  payment  for  supplies  and  necessaries. ^^ 
Generally  the  husband  is  a  proper  party  to  all  suits  affecting 
the  separate  property  of  the  wife,^*'  and  where  such  separate 
estate  is  held  in  trust  the  trustee  must  be  made  a  party. i'  If 
the  object  of  the  suit  is  to  take  the  tnist  fund  out  of  the  hands 
of  the  trustee,  or  a  bill  for  the  execution  of  the  trust,  all  the 
cestui  qui  trust  must  be  made  parties. i**  In  a  suit  in  equity  by 
the  wife  respecting  her  separate  property,  the  husband  is  not  a 
necessary  or  proper  party  complainant,  J**  but  may  properly  be 
made  a  defendant. '-^^  Generally  whatever  may  be  the  nature  or 
character  of  the  demand  against  a  married  woman,  her  hus- 
band may  properly  be  joined  in  the  action. 21  In  suits  to 
recover  for  antenuptial  debts,  the  husband  ought  (for  uni- 
formity) to  be  joined  with  his  wife  as  defendant. 22  Where  the 
the  husband  of  a  complainant  in  a  suit  brought  to  recover  her 
separate  estate  is  made  defendant,  it  was  held  upon  his  death 
that  his  heirs  should  be  made  parties,  unless  it  should  appear 
npon  the  exhibition  of  the  will  or  marriage  settlement  under 
which  she  claimed  that  they  have  no  intei'est.-'^  The  wife  has 
no  such  interest  in  the  common  property  as  to>  make  her  a 


§  22  NECESSABY  AND  PEOPER  PAP.TIES.  54 

necessary  or  pi-oper  party  in  suits  relating  thereto.-*  Where  a 
fand  was  raised  "by  the  sale  of  certain  lands  by  decree  of 
a  court  of  equity,  the  wife  of  one  who  claimed  a  part  of  the 
fund  was  held  to  be  a  necessary  party  to  a  suit  relating  thereto, 
it  being  alleged  that  she  held  an  interest  as  a  tenant  in  common 
in  the  lauds  at  time  of  the  sale. 25 

1  Berrj-  v.  Rogers,  2  Ben.  308 ;  Executors  etc.  v.  Van  Cortland.  2 
Johns.  Cli.  24-J ;  compare  Harrison  v.  Rowan,  4  Wash.  C.  C.  207. 

)2  Seal  V.  Woodworth,  3  Paige,  475. 

3  Gorham  v.  Gorham,  3  Barb.  C'h.  37. 

4  Petrie  v.  Shoemaker,  24  Wend.  85. 

5  McKillip  V.  McKillip,  8  Barb.  Ch.  555 ;  Ex  parte  Xorthington,  37 
Ala.  498. 

6  Lane  v.  Schermerhorn,  1  Hill,  97. 

7  Hiekenbotnam  v.  Blackledge,  54  111.  318  ;  Este  v.  Strong,  2  Ohio, 
406 ;  Mcllvoy  v.  Alsop,  45  Miss.  372  ;  Botsford  v.  O'Connor,  57  III.  76. 

8  Bloodgood  V.  Mickle,  15  Abb.  Pr.  107. 

9  Handry  v.  Clardy,  8  Fla.  82 ;  compare  Taylor  v.  Taylor,  6  Ben* 
565.  • 

10  Handry  v.  Clardy,  8  Fla.  82. 

11  Taylor  v.  Taylor,  6  Ben.  564. 

12  Lindsey  v.  Stevens,  5  Dana,  105. 

13  Smith  V.  Todd,  5  Marsh.  J.  J.  7. 

14  Dennison  v.  Potts,  11  Smedes  &  M.  42. 

15  Milburn  v.  Walker.  11  Tex.  340*  see  Cannon  v.  Hempill,  7  Tex. 
200. 

16  Winston  v.  McLendon,  43  Miss.  259 ;  Cannon  v.  Hempill,  7  Tex. 
200. 

17  Llemers  v.  Kleeberg,  56  Mo.  201 

18  Sherman  v.  Burn  ham,  6  Barb.  414. 

19  Tantum  v.  Coleman,  26  N.  J.  Eq.  130. 

20  Tunnard  v.  Littell,  23  N.  J.  Eq.  263. 

21  Carothers  v.  McNese,  43  Tex.  223  ;  but  see  Lehman  tr.  Hauk,  42 
N.  Y.  207 ;  see  also  chapter  Husbaxd  and  V/lfe,  infra. 

22  Cannon  v.  Grantham,  45  Miss.  95. 

23  Shepherd  v.  Harrell,  9  Humph.  641. 

24  Mott  V.  Smith,  16  Cal.  557;  Crow  v.  Van  Sickle,  6  Xev.  Ud; 
Shelby  v.  Pervin,  18  Tex.  517. 

25  Howerton  v.  Wimbish,  2  Jones  Eq.  3;31. 

§  22.  Who  are  necessary  or  proper  parties  in  suits  relat- 
ing to  the  estatss  of  decedents. — When  a  suit  is  brought  to 
Lave  a  will  construed,  all  persons  interested  in  the  estate 
thereby  sought  to  be  conveyed  should  be  made  parties. ^    To  a 


55  XECESSAKT  AND  PBOPIR  PABTIES.  §  22 

bill  seeking  to  set  aside  a  will  all  legatees  and  devisees  are 
indispensable  parties.  ^  A  person  who  is  charged  with  fraud 
and  collusion  in  obtaining  the  will  in  favor  of  an  infant  is  prop- 
erly made  a  party, ^  A  person  who  claims  by  title  paramount 
to  the  will  ought  not  to  be  a  party  to  a  bill  to  carry  into  effect 
the  trusts  therein  created.*  Where  assets  of  the  estate  are  to  be 
recovered  the  legal  representative  of  the  estate  is  the  proper 
person  to  maintain  the  action  ;  ^  if  an  executor  and  a  marri^  d 
woman,  her  husband  is  properly  joined  with  her  as  party  to  the 
suit.^  When  a  bill  is  filed  to  enforce  a  contract  for  the  con- 
veyance of  lands,  executed  by  the  decedent,  the  heirs,  and  hus- 
band of  a  female  heir,"  are  necessary  parties  to  the  proceeding.^ 
So  where  the  widow  and  heirs  of  decedent  executed  their  title 
bond  to  real  estate  of  wliich  decedent  died  seized,  and  the  pur- 
chaser executed  his  note  to  the  widow  alone  in  payment  there- 
for, held  that  the  heirs  were  necessary  parties  to  a  suit  upon 
the  note;  to  enforce  the  purchase  price.**  The  executor  of  a 
deceased  mortgagor  is  a  necessaiy  party  to  a  bill  to  recover 
possession  of  the  mortgaged  premises. i"  When  an  action  in 
the  nature  of  an  action  to  try  title  to  lands  is  brought  against  an 
administrator,  the  heirs  of  the  decedent  should  be  made  par- 
ties.^'^  In  an  action  to  enforce  payment  of  a  claim  against  an 
estate,  the  administrator  is  a  necessary  party  defendant. ^'^  In 
an  action  against  the  surety  of  a  deceased  administrator  for 
the  devastavit  of  his  principal,  the  representative  of  the  admin- 
istrator is  a  necessary  party. ^^  In  equity,  if  persons  have  prop- 
erty of  the  estate,  or  are  debtors  thereof,  or  if  collusion  exists 
between  them  and  the  administrator,  they  may  be  made  par- 
ties ;i*  but  a  mere  naked  bailee  need  not  be  made  a  defendant. ^^ 
If  it  is  sought  to  reach  property  in  the  hands  of  a  donee  of  the 
decedent,  the  administrator  must  be  made  a  party  ;  ^^  the  heirs 
also  are  necessary  par  ties.  ^^  When  an  estate  is  in  course  of 
administration  in  the  usual  way,  and  it  is  not  shown  that  assets 
have  come  into  the  possession  of  heirs,  they  are  not  necessary 
parties ;  '^  but  if  it  is  sought  to  subject  real  assets  of  the  estate 
to  payment  of  the  debts  of  decedent,  the  heirs  are  necessary 
parties  to  such  proceeding ;  i**  so  is  the  administrator.'-^"    The 


§   22  ISECESSABY   AND   PROPER   PARTIES.  56 

heirs  can  only  be  sued  without  joining  the  administrator  in  two 
cases  when  a  judgment  has  already  been  obtained  against  the 
administrator,  and  there  are  no  personal  assets, ^^  and  where 
there  is  no  administration  within  a  year.^^  jj-^  ^^  action  to  sub- 
ject assets  devised  to  payment  of  decedent's  debts,  the  adminis- 
trator must  be  a  party,  ^^  unless  his  accounts  have  been  made 
up  and  the  estate  regularly  delivered  over  to  the  legatees. 2*  All 
the  legatees  arc  necessary  parties,  especially  when  the  interest 
of  each  is  uncertain  ;  2^  but  creditors  are  not  indispensable  par- 
ties. 2<^  In  a  suit  to  recover  over  advances  made  by  the  adminis- 
trator, those  distributee^  who  have  refunded  the  amount  duo 
from  them  are  not  necessary  parties. ^^  When  it  is  sought  to 
subject  the  destribulive  share  of  a  Avife  in  an  estate  to  the  pay- 
ment of  a  debt  due  by  her  husband,  and  to  set  aside  an  assign- 
ment of  the  share  made  by  the  husband  to  a  trustee  for  the 
benefit  of  the  wife,  she  is  a  necessary  party  to  the  proceeding.-'^ 
In  an  action  against  executors  to  recover  trust  funds  (money) , 
specifically  bequeathed  by  the  testator,  but  which  are  alleged  to 
belong  to  plaintiff,  the  legatees  of  such  funds  are  not  necessary 
parties. ^'^  When  lands  are  directed  by  will  to  be  sold  and  con- 
verted into  money,  the  executor,  and  not  the  heirs,  represent 
the  estate,  and  the  latter  are  not  necessary  j^artics  to  a  suit  con- 
cerning the  disposition  and  charges  on  such  estate.^"  When  a 
bill  is  filed  for  an  account  of  the  personal  assets  of  decedent,  the 
administrator  must  be  made  a  party  ;^^  and  if  a  married 
woman,  her  husband  should  be  joined  ;^2  if  the  action  be  against 
the  administrator,  and  property  of  the  estate  has  been  received 
by  a  deceased  agent  of  the  administrator,  and  heirs  who  claimed 
a  large  amount  for  services,  the  representative  of  such  deceased 
agent  should  be  made  a  party ;  •^•^  but  a  person  who  holds  pos- 
session of  lands  under  claim  of  title  is  not  a  proper  party  to 
such  suit,  brought  by  a  judgment  creditor,  and  who  claims 
that  such  land  is  bound  by  the  judgment.^^  Legatees  (not 
being  residuary  legatees)  are  exceptions  to  the  rule  tliat  all  per- 
sons interested  in  the  trust  fund  must  be  parties  ;  one  legatee 
or  one  creditor  may  sue  on  behalf  of  himself  and  the  others  may 
come  in  under  the  decree. ^^    The  heirs  of  a  deceased  partner  are 


57  NECESSABT  A>'D  PKOPEE  PABTTES.  g  22 

proper  but  not  uecessary  parties  to  such  suit  against  the  admin- 
istrator; they  are  liable  only  to  the  extent  of  lands  descended 
to  them,  and  when  it  is  shown  that  the  personal  assets  are 
ample  the  bJl  may  be  dismissed  as  to  them  ;  ^^  but  residuary 
legatees  are  necessary  parties  to  such  proceeding.^"  As  a  gen- 
eral rule  all  the  next  of  kin  are  necessary  parties  to  a  bill  for 
final  settlement  and  distribution;^^  if  any  be  dead  their  per- 
sonal representatives  should  be  joined ;  ^^  but  if  the  estate  of 
the  deceased  distributee  be  closed  and  vested  in  the  heir  who  is 
a  party,  or  there  are  no  debts,  a  personal  representative  is  not 
necessary  to  represent  such  estate. ^^  In  an  action  to  recover  a 
legacy  or  distributive  share  the  personal  representative  of  such 
estate  must  be  a  party. ■*!  The  sureties  on  his  official  bond  are 
also  proper  parties,*-'  and  if  some  be  dead  their  representatives 
should  be  joined  ;*^  if  the  fund  sought  to  be  distributed  is  in 
the  hands  of  an  adverse  claimant,  and  the  bill  is  for  its  recov- 
ery and  disn-ibution,  the  representative  of  decedent  is  an  indis- 
pensable party  to  the  proceeding.*-^  When  the  bill  charges  the 
assets  of  the  estate  to  be  in  the  hands  of  the  surviving  executor, 
the  representative  of  the  deceased  co-executor  is  not  a  necessary 
party,  but  he  is  necessary  when  he  is  charged  with  assets,  or 
when  fraud  or  collusion  is  charged  between  the  executors,  or  in 
case  of  insolvency.-*^  In  a  suit  instituted  by  one  of  the  next  of 
kin  against  an  administrator  for  a  settlement  of  the  estate  in  a 
court  of  chancery,  all  parsons  entitled  to  a  distributive  share 
of  the  estate  are  necessary  parties.*''  In  a  suit  to  recover  a 
specific  legacy,  the  other  legatees  are  not  necessary  parties ;  *^ 
hut  in  a  suit  by  one  claiming  as  residuary  legatee,  all  are  neces- 
sary parties.***  "Where  the  assets  of  an  estate  are  undivided, 
all  the  distributees  are  necessary  parties  to  a  suit  by  the  assignee 
of  one  of  them  to  recover  the  amount  of  the  interest  assigned ;  *'' 
but  the  assignors  of  a  legacy  who  have  disposed  of  all  their  inter- 
est are  not  necessaiy  parties  to  a  suit  by  the  assignee. ^'^  When 
lands  are  devised,  and  after  the  death  of  the  testator  a  patent 
issues  to  him  t'.ierefor,  the  title  descends  to  his  heirs,  and  they 
are  necessary  parties  to  a  suit  by  the  devisee  to  recover  the 
same.^i    In  actions  to  recover  the  marital  portion,  the  heirs 


g  22  NECESSAKY  AXD  PROPER  PARTIES.  58 

must  in  all  cases  be  made  parties. ^'-^  When  the  question  arises 
as  to  the  lapse  of  a  legacy,  the  residuary  legatee  should  be  made 
a  party,  and  a  debtor  legatee  when  the  question  arises  as  to 
whether  or  not  his  debt  was  discharged  by  the  gift  of  Ihe 
legacy.^-*  The  executors  of  a  deceas^ed  complainant  are  not 
necessary  par  ies  to  a  bill  of  revivor  when  they  have  no  interest 
in  the  subject-matter  or  event  of  the  suit,  even  though  they 
were  directed  by  the  will  to  prosecute  it.°* 

1  Wetter  v.  Haversliam,  60  Ga.  202;  Hall  i>.  Allen,  31  Wis.  691; 
Coulter  V.  Stagg,  27  N.  J.  Eq.  306 ;  Magers  v.  Edwards,  13  W.  Va. 
828;  Moore  v.  Hegeman,  6  Hun,  291;  Benjamin  v.  Dell,  11  Ired.  49; 
Carter  v.  Balfour,  19  Ala.  822. 

2  Church  v.  I^elson,  35  Ohio  St.  642;  McCacken  v.  McCacken,  18 
Ala,  576  ;  Brown  v.  Klggin,  94  HI.  570. 

3  McCosker  v.  Brady,  1  Barb.  Ch.  343. 

4  Bond  ?'.  Connelly,  8  Ga.  305. 

5  Lee  v.  Chase,  58  Me.  435  ;  Harwood  r'.  Maye,  8  Cal.  580 ;  Saloy  v. 
Chexnaider,  14  La.  An.  567  ;  Manning  v.  Manning,  61  Ga.  139 ;  Gray  v. 
Hays,  7  Humph.  588. 

6  Olive  V.  Bumaforza,  31  N.  J.  Eq.  336. 

7  Mahan  v.  Mahan,  7  Ben.  5bl. 

8  Hale  v.  Darter,  5  Humph.  81 ;  compare  note,  Denn  v.  Jones, 
Goxe,  133;  Massie  v.  Donaldson,  8  Ohio,  379;  Harwood  v.  Marye,  8 
Cal.  580  ;  Cunningham  v.  Ashley,  45  Cal.  491 ;  contra,  Guilford  v.  Love, 

49  Tex.  733. 

9  Alexander  v.  Perry,  4  Hump.  391 ;  compare  Heath  v.  Garrett, 

50  Tex.  268. 

10  Gibbs  V.  Holmes,  10  Rich.  Eq.  484. 

11  Loller  V.  Frost,  38  Tex.  211 ;  Barrett  v.  Barrett,  31  Tex.  345 ;  com- 
pare Cunningham  v.  Ashlej",  45  Cal.  403. 

12  Salov  V.  Chexnaider,  14  La.  An.  563  ;  Cunningham  v.  Ashley,  45 
Cal.  491 ;  Harrison  v.  Kighter,  3  Stockt.  Ch.  393 ;  Dugger  v.  Ogelsby,  3 
Bradw.  107  ;  Duerson  v.  Alson,  27  Gratt.  250 ;  Abraham  v.  Hall,  59  Ala. 
391 ;  Cook  {'.  Sigon,  54  Miss.  652. 

13  Wright  V.  Evans,  10  S,  C.  Eq.  532. 

14  Gable  r.  Andruss,  1  Green  Ch.  74  ;  Harrison  v.  Kighter,  3  Stockt. 
Ch.  391 ;  M'Dowl  v.  Charles,  6  Johns.  Ch.  134. 

15  Abraham  v.  Hall,  59  Ala.  391. 

16  Dozier?'.  Dozier,  1  Dev.  &  B.  Eq.  103;  Byran  v.  Green,  3  Ired. 
Eq.  167  ;  Alexander  v.  Quigley,  2  Duval,  401. 

17  Thibodeaux  v.  Comeau,  30  La.  An.  1119  ;  Leonora  r.  Scott,  8  La. 
An.  460. 

18  Rucket  V.  Johnson,  45  Tex.  550. 

19  Estes  ?•.  Johnson,  10  Humph.  223;  Wallace  v.  Nichols,  56  Ala. 
323;  Mersereau  v.  Ryerss,  3  N.  Y.  263;  contra.  Telfair  v.  Stead,  2 
Cranch,  407  ;  compare  Harwood  r.  I\rarye,8  Cal.  580:  Cunningham  v. 
Ashley,  45  Cal.  4!)3 ;  see  also  Whitmore  v.  Johnson,  10  Humph.  610; 
O'Connor  v.  Carver,  12  HeisU.  436. 


59  XECESSAKY   AND   PROPER   PARTIES.  g  22 

20  Harwood  v.  Marye,  8  Cal.  580;  Beall  v.  Taylor,  2  Gratt.  532; 
ilassie  v.  Donaldson,  8  Ohio,  380;  compare  Mersereau  r.  Rvtrss,  3 
>'.  Y.  262. 

21  Abraham  v.  Hall,  5D  Ala.  .331. 

22  Dusgsr  ?'.  Ogelsby,  3  Bradw.  107;  compare  McGonigal  v.  Colter, 
32  Wis.  625. 

23  Perry  r.  Seitz,  2  Duval,  123. 

24  Hooper  v.  Royster.  1  Munf.  1.35 ;  Baines  v.  Barnes.  64  Ala.  3S1. 

25  Bethell  r.  Wilson,  1  Dev.  &  B.  Eq.  610  ;  compare  Jones  r.  Lack- 
land, 2  Gratt.  8-5. 

26  Potter  v.  Gardiner,  12  Wheat.  500  ;  Caldwell  v.  Kinkead.  1  Mon. 
B.  228. 

27  Alexander  r.  Fisher,  13  Ala.  377. 

2S    Elliott  V.  Warrmg,  5  3Ion.  339 ;   compare  Colvin  r.  Owens,  22 
Ala.  191. 
20    King  r.  Lawrence,  14  Wis.  240. 

30  Harris  v.  Bryant,  83  N.  C.  569. 

31  Goode  )•.  Goode,  2  Murph.  .336;  Wisner  v.  Barnet,  4  Wash.  612  ; 
State  V.  Johnson,  8  Ired.  399  ;  Silsbee  v.  Smith,  60  Barb.  372. 

32  Archibald  v.  Means,  5  Ired.  Eq.  232. 

33  Jewell  v.  Jewell,  11  Rich.  Eq.  321. 

34  Suber  v.  Allen,  13  S.  C.  317. 

35  Brown  v.  Rickitts,  3  Johns.  Ch.  .5-53  ;  compare  Colbert  ?-.  Daniel, 
32  Ala.  315. 

36  Diverseyr.  Johnson,  93  111.  5.55. 

37  Browder  v.  Jackson,  3  Lea,  157 ;  Gould  v.  Hayes,  19  Ala.  439. 

38  Teague  v.  Corbett,  57  Ala.  537 ;  Van  Mater  v.  Sickler,  9  X.  J.  Eq. 
4*4. 

39  Bvnum  v.  Branch,  1  Murph.  132;  compare  Teague  v.  Corbett, 
57  Ala.  "537. 

40  Baines  v.  Barnes,  64  Ala.  .380. 

41  Goode  V.  Goode,  2  Murph.  335 ;  Shaw  v.  Shaw,  1  Murph.  .3-34. 

42  Morris  )•.  Morris,  58  Ala.  447;  Dorsheimer  v.  Rorback.  23  X.  J. 
Eq.  48  ;  Jones  v.  Lackland,  2  Gratt.  84  ;  compare  Farr  v.  Hendnsks, 
12  Gratt.  642. 

43  Hutcherson  r.  Pigg,  8  Gratt.  22.3. 

44  Phillips  r.  Threadglll,  37  Ala.  93. 

45  Gable  v.  Andross,  1  Green  Ch.  74  ;  see  also  Gaines  v.  Hennen,  24 
How.  565. 

45  Van  Mater  v.  Sickler,  9  X.  J.  Eq.  484  ;  Sillings  v.  Beaugardner,  9 
Gratt.  274  ;  compare  Roberts  v.  Johns,  10  Rich.  101. 

47  Brown  ?•.  Ricketts,  3  Johns.  Ch.  5-54  ;  Da%-oue  v.  Fanning,  4  Johns. 
Ch.  202 ;  compare  Kincaid  v.  Rogers,  10  Humph.  8.3. 

48  Vanderhoof  v.  Davenport,  2  Green  Ch.  121 ;  Davoue  v.  Fanning, 
4  Johns.  Ch.  202  ;  Dehart  v.  Dehart,  2  Green  Ch.  472  ;  Nelson  ?■.  Page, 
7  Gratt.  106;  West  r.  Evans,  1  Del.  Ch.  123;  Osborne  v.  Taylor,  12 
Gratt.  182 ;  see  also  Dandridge  v.  Washington,  2  Peters,  372 ;  Hucka 
bee  V.  Swoope,  20  Ala.  498. 

49  Bogan  v.  Camp,  30  Ala.  231;  compare  Goodman  v.  Benham,  16 
Ala.  625. 


^23  >rECESSAEY  AND  PEOPEB  PARTIES.  60 

50  King  V.  Berry,  2  Green  Ch.  53. 

51  Cobb  V.  Stewart,  4  Met.  255. 

52  Vasseur  v.  Dupre,  8  La.  An.  488. 

53  Brokaw  v.  Hudson,  27  N.  J.  Eq.  136. 

54  Peer  v.  Cookerow.  14  N.  J.Eq.  366. 

§  23.  Who  are  necessary  or  proper  parties  in  suits  relat- 
ing to  trust  estates.  — Generally,  in  suits  brought  by  trustees 
in  relation  to  trust  funds,  the  cestui  qui  trust  is  a  neces- 
sary party  ;i  if  the  object  of  the  suit  is  to  obtain  possession 
of  the  fund  by  the  trustee  in  order  that  he  may  execute  the 
trust,  and  the  rights  of  the  cestui  qui  trust  are  in  no  way 
affected,  they  are  not  necessary  parties. ^  If,  however,  a  full 
investigation  of  the  management  of  the  fund  is  sought,  the 
beneficiary  is  a  proper  if  not  necessary  party. ^  "Where  the 
trustee  of  a  railroad  company  holding  funds  of  the  company  in 
trust  for  creditors  applies  to  the  court  for  instructions  as  to 
the  application  of  the  fund,  provided  the  beneficiaries  are 
numerous,  and  some  are  unknown,  they  need  not  all  be  made 
parties.*  Where  the  executor  of  a  deceased  trustee,  holding 
under  a  will,  applies  to  have  a. trustee  of  the  fund  appointed,  to 
whom  petitioner  may  account,  for  an  accounting,  etc.,  all  per- 
sons entitled  to  life  estates  and  remainders  under  the  original 
will  should  be  made  parties. &  Plaintifi"  owning  certain  patents 
brings  suit  against  defendants  averring  that  they  are  liable 
for  certain  tariffs  by  virtue  of  a  license,  and  for  account, 
transfers  his  interest  to  a  trustee  for  certain  purposes,  which 
M^hen  fulfilled,  and  the  debts  paid,  the  remaining  interest  is  to 
be  returned  to  the  assignor.  It  is  not  improper  that  he  should 
remain  a  party ;  the  ti-ustee  also  should  be  joined.*"  When  the 
subject-matter  of  a  trust  is  in  controversy,  all  the  trustees 
should  be  made  parties.''  Where  the  estate  is  conveyed  to 
trustees  jointly  the  estate  vests  in  the  survivor  upon  the  death 
of  one,  and  his  heirs  need  not  be  made  parties  to  a  suit  con- 
cerning the  same.*^  In  suits  against  trustees  if  the  trustee 
represents  the  beneficiaries  in  all  things  relating  to  their  com- 
mon interest  in  the  trust  property,  the  cestui  qui  trust  are  not 
necessary  parties  to  a  suit  by  a  stranger  to  defeat  the  trust  in 


61  >-ECESSAKT  A^-D   PKOPEB   PAETIES.  ^    23 

■whole  or  in  part.^  As  a  general  rule,  however,  in  all  suits 
either  by  or  against  the  trustee  respecting  the  trust  property 
tlie  cestui  qui  trust  are  necessary  parties. i"  When  a  decedent 
holding  funds  (money)  in  trust,  sp2cifically  bequeathes  them, 
the  legatee  is  not  a  necessary  party  to  a  suit  for  their  recovery 
brought  against  the  esecutor,ii  nor  are  the  heirs  of  the  decedent 
neoessai'y  parties  to  the  proceeding.  ^2  '^^hen  title  is  held  as  a 
naked  trust  with  only  a  limited  power  to  convey,  the  heirs  of 
a  deceased  beneficiaiy  are  necessary  parties  to  a  suit  to  recover 
the  tmst  property.^**  In  an  action  by  a  surety  against  his  co- 
surety to  e3tabli-.h  a  trust,  and  compel  the  latter  from  the 
proceedi  of  collaterals  in  his  hands,  to  reimburse  him  for 
moneys  expended,  etc.,  the  person  to  whom  the  money  was 
paid  is  not  a  necessary  party. ^*  In  an  action  by  one  of  several 
cestui  qui  trust  to  declare  and  enforce  an  implied  trust  in  rela- 
tion to  land,  all  persons  who  claim  an  interest  in  the  trust 
estate  are  proper  parties.i^  In  a  suit  to  enforce  the  provisions 
of  a  trust  deed  the  trustee  is  a  proper  party,  but  the  mere  naked 
title  being  in  the  trustee,  and  the  parties  beneficially  interested 
being  before  the  court,  he  is  not  an  indispensable  party. i** 
Persons  whose  interests  in  the  trust  property  accrued  prior  to 
the  execution  of  a  deed  of  trust,  and  are  recited  therein,  are  not 
necessary  parties  to  a  bill  to  enforce  the  trust. ^^  In  an  action 
by. the  assignee  of  a  non-negotiable  note  to  enforce  its  collec- 
tion, the  assignor  holds  the  legal  title  in  trust  for  the  assignee, 
and  is  a  necessary  party  to  the  proceeding.^^  The  assignor  of 
property  for  the  benefit  of  creditors  is  a  necessary  party  to  a 
suit  brought  by  the  cestui  qui  trust  against  the  assignee  for  an 
account. 1^"  Where  the  trust  deed  is  made  to  a  trustee  for  the 
payment  of  creditors  in  classes,  creditors  of  the  second  class 
are  not  necessary  parties  to  a  suit  by  those  of  the  first  class  for 
an  account.2"  So  if  the  claims  of  the  creditors  have  been  paid 
they  are  not  necessary  parties  to  such  proceeding.  21  When 
premises  have  been  conveyed  in  trust  by  a  debtor  to  secure  his 
sureties  from  harm,  it  is  error  to  decree  a  sale  of  the  premises 
at  the  instance  of  a  third  person  (creditor)  without  making 
the  former  creditor  a  party  to  the  proceeding.^^  All  the  cred- 
Pakt:es-6 


g  23  NECESSAEY  AND  PEOPEB  PAKTIES.  C2 

itors  secured  by  a  deed  of  trust  must  be  made  parties  to  a  suit 
by  one  of  the  same  class  for  account  of  the  trust  fund.^^  When 
a  creditor  seeks  to  subject  to  the  payment  of  his  debt  a  fund 
which  had  been  devised  in  trust  to  the  use  of  his  debtor  who 
had  been  declared  a  bankrupt,  and  who  had  not  scheduled  his 
interest  in  the  trust  property,  the  other  creditors  are  not  neces- 
sary parties  to  the  proceeding. 2*  When  the  trustee  named  in 
the  trust  deed,  and  to  whom  power  to  convey  the  lands  con- 
veyed is  given  (provided  the  note  secured  thereby  is  not  paid) 
dies,  the  trustor  is  a  necessary  party  to  an  original  bill  for  the 
appointment  of  a  new  trustee,  and  if  such  trustor  has  con- 
veyed away  his  interest  in  the  lands  the  purchaser  is  also  a 
proper  party.^o  When  the  trustee  holds  in  naked  trust,  and 
the  beneficiaries  are  before  the  court,  it  is  not  material  that  the 
heirs  of  some  of  the  deceased  trustees  are  not  parties. '-^"^  When 
land  has  been  conveyed  to  a  trustee  to  secure  the  payment  of 
debts,  the  fact  that  the  person  named  as  trustee  has  not  per- 
formed certain  statutory  requirements  before  proceeding  to 
execute  the  trust  does  not  divest  the  legal  title  to  the  premises 
in  such  manner  as  to  warrant  the  court  in  proceeding  to  enforce 
the  deed  without  making  the  trustee  a  party.^^  X.  conveyed  to 
Z.  (named  as  his  executor)  by  will  certain  funds  to  be  by  him 
held  for  the  benefit  of  A.  during  her  life,  and  to  be  paid  from 
time  to  time  in  his  discretion,  and  upon  the  event  of  her  death 
to  be  divided  among  her  children.  In  a  suit  by  A.  against  the 
administrator  of  Z.,  for  an  account  and  payment  of  tlie  legacy, 
it  was  held,  the  amount  of  the  trust  fund  being  uncertain,  that  a 
general  account  of  the  estate  of  the  testator  was  necessary,  and 
that  an  administrator  de  bonis  non  of  his  estate  should  be  made  a 
party,  even  though  all  the  debts  and  legacies  with  the  exception 
of  that  due  the  claimant  had  been  paid ;  if  the  amount  of  the 
trust  fund  had  been  certain  or  made  certain  by  a  settlement 
filed  by  Z.  (the  executor) ,  the  rule  might  be  difierent.^^  When 
the  husband  conveys  the  bare  legal  title  to  property  to  a  trustee 
to  be  held  by  him  for  trustor's  use,  and  to  prevent  the  martial 
rights  of  his  wife  from  attaching  thereto,  such  trustee  is  a 
proper  party  to  a  suit  for  a  divorce,  an  interest  in  such  prop- 


63  NECESSAET  AM)  PEOPER  PARTIES.  §  23 

erty  being  claimed  by  complainant.^  In  a  suit  by  a  surety 
against  his  principal  to  recover  for  a  debt  paid  by  the  surety, 
and  to  subject  lands  of  his  principal  alleg.d  to  have  been  con- 
veyed by  him  in  secret  trust,  such  trustee  should  be  made  a 
pai-ty  to  tlie  proceeding.^o  So  also  in  a  suit  to  enforce  the  col- 
lection of  notes  held  in  trust  for  the  payment  of  debts,  the 
trustee  is  a  necessary  party.^^  When  it  is  sought  to  divest  the 
interest  of  one  who  is  a  minor  and  married,  in  real  premises 
the  title  of  which  is  held  in  trust,  it  is  error  to  proceed  therein 
without  making  the  trustee  a  party  to  the  proceedings.  =*2  Jq  a 
suit  to  adjust  the  equities  between  the  gi'antors  of  a  trust  deed 
upon  the  separate  lands  of  each.,  and  which  had  been  paid  off 
by  one,  the  trustees  named  in  the  deed  are  not  necessary 
parties. -^^ 

1  Blake  v.  Allman,  o  Jones  £q.  403;  Haskell  v.  Codman.S  :Met. 
536  ;  compare  House  r.  Post,  31  Conn.  2-53  ;  Gibbes  v.  Ry.  Co.  13  S.  C.  228. 

2  3Iartin  v.  McRej'uolds,  6  Mich.  72  ;  Adams  v.  Bradley,  12  Mich. 
350. 

3  Attv.-C4en.  v.  Parker,  126  Mass.  221 ;  compare  Woodsoa  v.  Per- 
kins, 5  Gratt.  352. 

4  Cov  ?•.  Beckwith,  31  Barb.  340;  see  also  Robinson  v.  Robinson, 
11  Bush,  175. 

5  Boiling  V.  Stokes,  7  Rich.  363. 

6  Judson  V.  W.  M.  Co.  33  Conn.  463. 

7  Sayre  v.  .Sayre,  17  X.  J.  Eq.  349  ;  Judson  v.  W.  M.  Co.  33  Conn. 
461 ;  Carter  r.  Jones,  5  Ired.  Eq.  200  ;  Cassidv  v.  McDaniel,  8  Mon.  B. 
.51=) ;  Wakefield  >-.  Marr,  65  Me.  Ul :  McClennen  v.  McClennen.  65  Me. 
500  ;  Malin  r.  Malin,  2  Johns.  Ch.  2:iS ;  Phipps  v.  Tarpley,  24  Miss.  599. 

8  McAllister  v.  Plant,  54  Miss.  117 ;  see  also  Paul  v.  Fulton,  25  Mo. 
157. 

9  Kerrison  v.  Stewart,  93  U.  S.  160 ;  Pijidall  v.  Trevor,  .30  Ark.  269 ; 
"Winslow  r.  Minn.  &  P.  Ry.  Co.  4  ilinn.  317;  Campbell  v.  Watson,  8 
Ohio  St.  .501. 

10  Piatt  V.  Oliver,  2  McLean,  307 ;  Hill  v.  Durand.  .50  Wis.  3.59 ;  Peti- 
tion of  Lyman,  11  R.  I.  LSS ;  Prewett  v.  Land,  7  Ga.  .d-DS  ;  Benjamin  v. 
Loughborough,  .31  Ark.  210  ;  McDonald  v.  Frazier,  43  How.  Pr.  322. 

11  King  V.  Lawrence,  14  Wis.  233. 

12  Paul  r.  Fulton,  25  Mo.  164. 

13  Cod.  &  Lex.  Ry.  Co.  v.  Bowler,  9  Bush,  43.5. 

14  Rosenthal  r.  Sutton,  .31  Ohio  .St.  412. 

15  Hall  V.  Harris,  11  Tex.  .303;  Goodwin  v.  Goodwin,  6,1  Mo.  621 ; 
Piatt  ?'.  Oliver,  -i  McLean,  27:  Jenkins  r.  Frink,  'iO  Cal.  .SS7 ;  see  also 
Huffman  v.  Cartwrisrht,  44  Tex.  296;  Pence  v.  Pence,  2  Beasl.  249; 
Hallesly  v.  Jackson,  66  111.  141. 

16  Green  v.  Gaston,  56  Miss.  752. 


§  24  NECESSAEY  AND  PROPER  PARTIES.  64 

17  Suydam  v,  Dequinder,  Har.  (Ch.)  349, 

18  Meyers  v.  Miller,  2  Wood.  &  M.  420;  Stevens  v.  Swallows,  2 
"Wood.  &  M.  379;  compire  Meyers  r.  Wing,  0  Ohio  St.  .558;  Grant  v, 
Ludlow,  8  Ohio  St.  2  ;  Whitney  v.  3IcKeuuey,  7  Johns.  Ch.  145;  Eld- 
ridge  V.  Turner,  11  Ala.  1055. 

19  Guisse  v.  Beall,  3  Wis.  352. 

20  Smith  v.  Turreutine,  8  Ired.  Eq.  190. 

21  Andrews  v.  Hobson,  23  Ala.  '2»2. 

22  Kendrick.  v.  Whitney,  28  Gratt.  647  ;  see  also  Billups  v.  Sears,  5 
Gratt.  38. 

23  Murphy  v.  Jackson,  5  Jones  Eq.  14;  Rountree  v.  McKay,  6 
Jones  Eq.  88. 

24  Bugely  v.  Robinson,  19  Ala.  410. 

25  Holden  v.  Sticknej',  2  Mac.  G.  141. 

26  Xt.  C.  Bridge  Co.  ?•.  Douglass,  12  Bush,  719 ;  same  efifect  Gibbs  v. 
G.  etc.  By.  Co.  1.3  S.  C.  240. 

27  Gardner  r.  Brown,  21  Wall.  36. 

28  Baby  v.  Ellison,  5  Ired.  Eq.  268. 

29  Wetmore  v.  Wetmore,  5  Oreg.  469 ;  see  also  Van  Duzer  v.  Van 
Duzer,  6  Paige,  .367 ;  Barker  v.  Dayton,  28  Wis.  378. 

30  Kimball  v.  Greig,  47  Ala.  230. 

31  Hill  i\  Boyland,  40  Miss.  610,  compare  Jones  v.  Johnson,  10 
Bush,  659. 

32  O'Kara  v.  McConnell,  93  V.  S.  150. 

33  Briscoe  v.  Power,  85  111.  420. 

§  24.  "Who  are  necessary  or  proper  parties  in  suits 
by  creditors,  assignees,  sureties,  etc.  —  lu  an  action  for  an 
accounting  all  persons  interested  in  obtaining  the  account 
slioulcl  be  made  parties.^  A  creditor  who  has  transferred  to  a 
third  T)erson  collateral  secureties  held  by  him  and  belonging  to 
his  debtor,  is  a  necessary  party  to  a  suit  by  the  debtor  against 
such  third  person  to  recover  the  same. 2  When  defendants 
admit  the  indebtedness  alleged,  but  show  that  a  judgment 
creditor  of  plaintiff  has  a  suit  in  aid  of  execution  then  pending 
against  both  plaintiff  and  defendant,  it  is  error  to  render  judg- 
ment for  the  amount  admitted,  until  such  judgment  creditor  is 
made  a  party  or  his  rights  determined.^  Where  a  number  of 
persons  appoint  an  agent  for  a  common  purpose,  all  must 
unite  in  an  action  for  an  account.*  Where  an  equitable  chose 
has  been  assigned,  the  assignors  are  not  necessary  parties  to 
an  action  upon  the  same  for  an  account. ^  In  a  procee^Jing 
by  the  United  States  as  an  ordinary  creditor,  to  reach  credits 


65  NECESSABT  A^■D  PEOPEK  PABTIES.  ^  24 

of  its  debtor  in  the  hands  of  a  third  person,  and  for  an  account, 
the  original  debtor  of  the  United  States  is  a  necessary  party.^ 
In  a  suit  by  one  of  several  wards  for  an  account  against  his 
guardian  and  sureties  upon  his  official  bond,  all  the  other 
wards  interested  in  the  general  fund  must  be  made  parties^ 
If  the  suit  is  against  the  administrators  of  the  deceased  oblig- 
oi's,  the  heirs  of  the  decedents  are  not  necessary  parties.^  In  a 
procseding  against  a  partnership  for  an  account,  all  partners 
are  necessary  parties ;  ^  and  persons  who  have  obtained  by 
fraudulent  means  firm  assets  are  properly  joined  ;  ^^  heirs  of  a 
deceased  partner  are  also  proper  but  not  necessary  parties." 
To  a  bill  by  a  surety  against  his  principal  and  counter  sureties 
to  enforce  his  exoneration,  the  creditor  and  a  co-surety  may 
properly  be  joined  as  plaintiffs. ^^  To  a  bill  brought  by  a  surety 
against  a  co-sui'ety  for  contribution,  their  common  principal, 
or  if  he  be  dead  his  administrator,  is  a  proper  party. i^  All 
solvent  sureties  should  be  parties,  but  those  who  are  insolvent 
need  not  be  joined.i"^  When  a  surety  has  paid  the  debt  he  is 
entitled  to  an  assignment  of  the  securities  held  by  the  creditor, 
and  in  a  bill  to  enforce  his  rights  thereto  and  for  substitution, 
the  creditor  need  not  be  a  party ;  but  if  he  has  not  paid  the 
debt  the  creditor  must  be  a  party  to  such  suit.^^  To  a  credit' 
or's  bill  all  the  joint  judgment  debtors  are  not  necessary  parties 
if  it  distinctly  aj^pears  that  those  not  joined  are  insolvent  and 
wholly  destitute  of  property, ^^  or  are  not  intei'ested  in  the  i^rop- 
erty  sought  to  be  subjected  to  payment  of  the  creditor's  claim. ^' 
A  corporation  is  a  necessary  party  to  a  bill  to  declare  its  disso- 
lution and  wind  up  its  affairs.!^  If  the  object  of  a  suit  is  to 
reach  property  of  the  debtor  fraudulently  conveyed,  the  grantee 
is  a  necessary  party ;  ^^  and  if  the  property  sought  was  owned 
by  one  of  several  debtors  who  conveys  all  his  interest,  and  the 
conveyance  is  valid  as  between  the  parties  thereto,  neither  a 
joint  dtbtor,2"  the  grantor,  his  heirs  ^^  (if  he  be  deceased) ,  nor 
his  personal  representatives  22  need  be  made  parties.  "When  X. 
makes  a  verbal  contract  with  Z.  (a  judgment  debtor),  to  con- 
vey him  an  interest  in  real  estate,  and  puts  him  in  possession 
thereof,  Z.  is  a  necessary  party  to  a  creditor's  suit  against  X.  to 


g  24  KECESSARY  AND  PROPER  PARTIES.  66 

subject  the  interest  of  Z.  to  the  payment  of  their  claims. '-^^ 
When  the  judgment  debtor  is  dead  his  administrator  should  be 
made  a  part}'  in  a  suit  to  reach  property  in  the  liands  of  the 
heirs. 21  If  the  executor  is  insolvent  or  has  been  removed,  the 
legatees  are  necessary  i^arties,^^  In  suits  relating  to  an  insolv- 
ent's estate,  his  assignees  must  be  parties. ^<5  So  if  a  party 
become  insolvent  pending  the  suit,  his  assignee  must  be  made  a 
party. '^^  In  a  suit  by  the  assignee  to  recover  the  property  of 
the  bankrupt,  creditors  are  proper  parties ;  '^^  and  when  the  in- 
solvent debtor  seeks  to  recover  an  interest  in  property  conveyed 
during  the  insolvency  proceedings,  his  creditors  are  necessary 
parties.  2^  It  is  a  general  rule  that  where  it  is  necessary  to  ad- 
judicate tlie  rights  of  an  assignee,  the  assignor,  or  if  he  be  dead 
his  personal  representative,  must  be  a  party  to  the  cause  ;  ^" 
but  when  the  assignor  has  transferred  all  his  interest,  and  the 
extent  and  validity  of  the  assignment  is  not  doubted  or  denied, 
he  is  not  a  necessary  party. ^^  In  an  action  by  an  assignee  the 
mere  fact  that  the  defendant  pleads  an  offset  larger  in  amount 
than  plaintiff's  claim,  that  had  accrued  against  the  assignor 
prior  to  the  assignment,  is  not  sufficient  reason  for  making  the 
assignor  a  party.*^^  jn  ^n  action  for  damages  for  breach  of 
contract,  where  no  other  person  has  acquired  an  interest 
therein,  only  parties  to  the  contract  should  be  made  parties  to 
the  proceeding. *^^  If  the  subject-matter  of  the  suit  relates  to  a 
bond  in  which  there  are  joint  obligors,  they  all  ought  to  be  made 
parties. ^1  In  a  suit  against  the  surviving  obligors  on  an  official 
bond,  the  personal  representative  of  the  deceased  principal  is 
not  a  necessary  party  ;^5  and  when  relief  is  sought  against  the 
administrator  of  a  deceased  obligor,  the  representatives  of  joint 
obligors  who  are  also  deceased  and  insolvent  are  not  necessary. ^♦^ 
A.,  an  insurance  company,  insured  X.  against  loss  from  fire 
upon  buildings  which  were  subsequently  destroyed  by  the 
negligence  of  Z.,  a  railroad  company.  A.  paid  X.  the  amount 
covered  by  its  policy,  and  Z.  compromiseel  and  paid  X.  the 
amount  of  his  loss.  In  a  suit  by  A.  against  Z.  to  have  the  re- 
lease of  X.  to  Z.,  eleclared  fraudulent  anel  void  as  to  it  (A.) ,  the 
insured  person  X.  is  a  proper  party ;  but  in  an  action  to  recover 


G7  >t:cess^ky  A2sD  pbopeb  paeties.  §  24 

tlie  money,  neither  defendant  is  a  necessary  or  proper  party  to 
a  suit  against  tlie  other. ^'  When  a  policy  is  payable  to  "  who- 
%-er  may  be  concerned  at  time  of  loss,"  a  mortgagee  for  full 
value  of  the  property  need  not  mate  the  mortgagor  a  party  to 
an  action  to  recover  for  the  loss.^**  In  a  suit  upon  a  promissory 
note  payable  to  several  payees  one  of  whom  has  been  declared 
a  bankrupt,  the  assignee  and  not  the  bankrupt  payee  is  a  proper 
party.^^  When  a  note  is  taken  by  one  as  commissioner,  the 
beneficiaries  of  the  fund  are  not  necessary  parties  to  a  suit  to 
recover  upon  the  same.*"  When  the  assignor  has  transferred 
all  his  interest  in  the  chose  in  action,  he  is  not  a  proper  party 
to  a  suit  thereon. *i  But  if  the  transfer  is  not  absolute  or  is 
denied,  he  is  a  necessary  party."*^  So  if  charged  to,  be  fraudu- 
lent,*^ or  if  the  note  was  assigned  without  indorsement.**  The 
assignor  of  an  account  as  collateral  security  is  not  a  necessary 
party  to  a  suit  to  collect  the  same.*^  An  assignment  by  a  cred- 
itor of  a  portion  of  a  debt  does  not  make  the  assignee  a  joint 
owner  of  the  whole  debt  and  a  necessary  p  irty  for  its  recovery. *s 
A  mortgagee  of  land  is  not  a  proper  party  to  an  action  for  the 
recoveiy  of  money  only,  merely  because  the  land  has  been  at- 
tached by  plaintiff.*^  In  an  action  by  A.  against  Z.  upon  his 
promise  to  pay  for  goods  sold  by  A.  to  X.,  X.  is  not  a  necessary 
party.*^  In  an  action  by  a  judgment  creditor  to  compel  a  gar- 
nishee to  pay  over  money  of  the  judgment  debtor,  the  latter  is 
a  proper  party  ;*^  and  when  relief  is  sought  against  a  surety, 
his  principal  must  be  joined.^o  As  a  general  rule,  it  is  only 
when  two  or  more  persons  have  an  interest  in  or  title  to  the 
property  affected  or  the  damages  to  be  recovered  that  they 
can  unite  in  an  action.^i  In  an  action  for  damages  against 
a  railroad  company  for  negligence,  an  attorney  who  is  to 
receive  a  certain  amount  of  the  sum  recovered  as  compensa- 
tion for  services  is  not  a  necessary  party  plaintiff  ;^^  and 
generally  an  attorney  from  whom  no  relief  or  discovery  is 
asked  is  an  improper  party  to  a  bill  in  chancery. =^  An 
attorney  in  fact  is  not  a  trustee,  and  is  not  a  necessaiy  party 
to  represent  the  rights  of  his  principal,^*  So  generally  a  per- 
son who  acts  as  the  mere  agent  of  another  in  a  transaction  is 


§  34  NECESSARY  AND  PEOPEE  PAETIES.  C8 

not  a  proper  party  to  a  suit  thereon  unless  he  is  charged  with 
fraud.  5^ 

1  Petrie  v.  Petrie,  7  Lans.  95 ;  Keeler  v.  Keeler,  3  Stockt.  Ch.  460  ; 
Dart  V.  Palmer,  1  Barb.<  h.  <J7. 

2  Lewis?'.  Varmuni,  12  Abb.  Pr.  308;  also  Hammoiid  r.  Hiuisou 
B.  I.  &  M.  Co.  20  Barb.  383. 

3  Benson  v.  Stein,  34  Ohio  St.  295. 

4  La.  Bd.  of  Trus.  v.  Dupuy,  31  La.  An.  307. 

5  Sayles  v.  Tibbetts,  5  R.  I.  79. 

G  U.  S.  ?•.  Ilowland,  4  Wheat.  116. 

7  Hendry  v.  Clardy,  8  Fla.  77. 

8  Smith  V.  Botan,  44  lU.  507. 

9  McKaig  v.  Hebb,  42  Md.  227. 

10  Wade  v.  Rusher,  4  Bosw.  546. 

11  Diversey  ■?'.  Johnson,  93  111.  557  ;  Moore  v.  Huntington,  17  Wall. 
421. 

12  Ferrer  v.  Barrett,  4  Jon  es  Eq.  455. 

13  Rainej^  v.  Yarborough,  2  Ired.  Eq.  249. 

14  Moore  v.  Isley.  2  Dev.  A  B.  Eq.  372 ;  Johnson  r.  Vaughn,  65  111. 
427  i  see  Hilton  v.  Crist,  5  Dana,  384 ;  Van  Cleef  v.  Sickles,  5  Paige, 
506, 

15  Lowe  V.  ISTewbold,  4  Jones  Eq.  212 ;  M'Nairy  v.  Eastland,  10 
Yerg.  310. 

16  Van  Clef  v.  Sickles,  5  Paige,  506. 

17  Shotwell  V.  Taliaferro,  25  Miss.  Ill ;  see  also  Ozley  v.  Skelheimer, 
26  Ala.  338. 

18  Miekles  t\  Rochester  Bk.  11  Paige,  126 ;  and  compare  Dinsmore 
V.  A.  &  P.  Ry.  46  How.  Pr.  IJo  ;  Freeman  v.  Stein,  S4  Leg.  Int.  SG. 

19  Hammond  v.  H.  R.  I.  &  M.  Co.  20  Barb.  383. 

20  Fox  r.  Moyer.  54  X.  Y.  130. 

21  Hall  r.  James,  75  Va.  114  ;  Fox  v.  Moyer,  54  X.  Y.  i;;0. 

22  Hall  V.  James,  75  Va.  114. 

23  Logan  v.  Hall,  42  Cal.  649. 

24  Postlewait  v.  Howes,  3  Iowa.  377  ;  see  also  Pharis  ?'.  Leachman, 
20  Ala.  675. 

25  Eraser  v.  Charleston,  13  S.  C.  542  ;  and  see  Sanders  r.  Godley,  23 
Ala.  476. 

26  Moran  v.  Hays,  1  Johns.  Ch.  339 ;  Sells  v.  Hubbell,  2  Johns.  Ch. 
393. 

27  Deas  v.  Thome,  3  Johns.  549 ;  see  Maple  v.  Lyman,  6  Conn.  60. 

28  Boone  V.  Hall,  7  Bush,  67. 

23    Tiffany  v.  Kent,  2  Gratt.  236. 

30  Vance  7-.  Evans,  11  W.  Va.  382;  Corbin  v.  Emmerson,  10  Leigh, 
668  ;  Wickhffe  v.  Clay,  1  Dana,  594  ;  Clark  v.  Edney,  6  Ired.  52. 

31  Vance  v.  Evans,  11  W.  Va.  382  ;  Polk  v.  Gallant,  2  Dev.  &  B.  Eq. 
398 ;  Mullins  v.  McCandless,  4  Jones  Eq.  428. 

32  Davis  v.  Sutton,  23  Minn.  307 ;  7  Mon.  345. 


69  XECESSARY   AXD   PKOPEB   PAJiXIES.  §  25 

33  Barber  v.  Cazalis,  30  Cal.  92  ;  Ward  v.  Whitney,  8  X.  Y.  44.5  ;  La 
Grange  v.  Chapman,  11  Mich.  500. 

34  Campbell  v.  Western,  3  Paige,  124;  compare  Johnson  v.  Chaud-- 
ler,  15  Mon.  B.  SiS  ;  Brown  v.  Champlin,  66  X.  Y.  215. 

3.J    Hunt  V.  Gaylor,  25  Ohio  St.  620. 
"3    Montague  v.  Turpin,  8  Gratt.  455. 

37  Monmouth  Co.  Fire  Ins.  Co.  v.  Hutcliinson,  21  X.  J.  Eq.  116. 

38  Tlogers  i'.  Traders'  Ins.  Co.  6  Paige,  583;  compare  Lasher  v.- 
Xortliwestern  Xatl.  L.  I.  Co.  55  How.  Pr.  325. 

33    Pugh  V.  Holliday,  3  Ohio  St.  285. 

40  Harrison  v.  Hailum,  5  Cold.  529 ;  see  Miller  v.  Whittaker,  23  III. 
455. 

41  J.  R.  &  K.  Co.  V.  Littlejohn,  18  Gratt.  83 ;  Crooker  v.  Rogers,  53 
Me.  342;  Ward  v.  Van  Bokelen,  2  Paige,  295  ;  see  contra,  Carpenter  v. 
Miles,  17  Mon.  B.  602  ;  Broughton  v.  Mitchell,  64  Ala.  220. 

42  Broughton  r.  Mitchell,  64  Ala.  220 ;  cases  supra,  also  Currier  v. 
Howard,  14  Gray,  513, 

43  Williams  v.  Smith,  49  Me.  564. 

44  Clongh  r.  Thomas,  53  Ind.  25;  lost  note  see  Butler  v.  Anderson, 
27  Ind.  117  ;  Mitchell  v.  Chancellor,  14  W.  Ya.  22. 

45  AUen  v.  Miller,  11  Ohio  St.  374, 
43    LoGse  V.  Sherwood.  21  CaL  1G3. 

47    Endsl  v.  Leibrock,  33  Ohio  St.  263. 

43  Lomax  v.  McKinney,  61  Ind.  374 ;  see  also  Melvain  v.  Tomes,  14 
Hun,  32;  Shark  v.  3Ialone,  'M  Ind.  444;  compare  Smiths,  Lawrence, 
o3  Cal.  25 ;  Miller  v.  Thompson,  34  Mich.  10. 

49  Chilcote  v.  Couley,  36  Ohio  St.  547. 

50  Tobin  v.  ^Vilson,  3  Marsh.  J.  J.  69 ;  Eoane  r.  Pickett,  7  Ark.  4:r> ; 
Hart  r.  Coffee,  4  Jones  Eq.  322, 

51  Bhoades?'.  Booth,  14  Iowa,  576;  compare  H.  &.  G.  Xav.  Co.  v. 
Diver,  2J  Tex.  376 ;  Hill  v.  Harris,  4  Bush,  450. 

52  McDonald  v.  Chi.  &  X.  AV.  Ry.  Co.  2G  Iowa,  141. 

53  Hopson  r.  Harrell,  56  Miss.  202;  see  also  Crane  v.  Dem!:;g,  7 
Conn.  3S7. 

51    Powell  T.  Ross,  4  Cal.  197. 

55  Lyon  v.  Tevis,  8  Iowa,  81;  Avers  v.  Wright,  8  Ired.  Eq.  229; 
Watson  ?'.  Cobnrn,  2  Dev.  &  B.  Eq.  357 ;  compare  Bateau  v.  Bernard, 
3  Blatchf.  247 ;  Speiss  v.  Sharp,  63  Ga.  166. 

I  25,  Wiio  are  necessary  or  proper  parties  in  Guits  by 
co-pcirtners,  corporations,  etc.  —It  is  a  general  rule  that  in  all 
suits  relating  to  a  partaersliip,  all  the  partners  are  necessary 
parties,  either  as  plaintiff  or  defendant,^  and  where  the  interest 
of  a  deceased  partner  is  involved.  Ids  personal  representative 
should  he  made  a  party.2  In  a  suit  in  equity  by  a  portion  of 
the  members  of  a  firm  against  a  co-partner  for  an  accounting  of 
firm  funds,  all  partners  must  be  parties;^    but  a  dormant 


§  25  NECESSAKY  AND  PEOPEB  PARTIES.  70 

partner  who  has  never  been  known  in  the  particular  transac- 
tion need  not  be  made  a  party.*  So  co-partners  who  had  sold 
out  all  interest  in  the  business  before  the  matter  in  controversy 
arose  need  not  bo  joined.^  X.  induced  A.,  his  partner,  to  sell 
the  firm  property  at  an  inadequate  price  to  himself,  Q.,  E.,  and 
S.  In  a  suit  by  A.  against  X.  to  settle  the  affairs  of  the  old 
firm  on  the  theory  that  the  sale  had  been  induced  by  fraud, 
and  to  charge  X.  wit*li  the  fair  value  of  the  property,  where  no 
complicity  or  knowledge  was  charged  on  the  part  of  Q.,  E.,  and 
S.,  and  no  relief  asked  against  them,  they  are  not  necessary 
parties.^  The  assignee  of  a  bankrupt  partner  is  a  necessary 
party  to  a  suit  brought  to  recover  a  debt  due  the  firm  at  the 
time  of  his  bankruptcy,  when  such  assignee  takes  a  beneficial 
interest  in  the  partnership  assets  as  a  trustee  for  the  separate 
creditors  of  the  bankrupt  partner  under  the  proceedings  in 
bankruptcy.''^  So  in  Louisiana  in  an  action  for  the  recovery  of 
iDoney  by  a  surviving  partner,  the  administrator  of  the  de- 
ceased co-partner  must  be  joined.^  When  property  of  a  part- 
nership has  come  to  the  hands  of  the  heir  of  a  deceased 
partner,  the  administrator  of  the  estate  of  such  heir  is  a 
proper  party  in  a  suit  by  the  surviving  partner  to  have  the 
trust  declared.^  In  a  suit  by  the  administrator  of  a  deceased 
partner  to  have  an  account  of  partnership  afiiiirs,  the  heir  is 
not  a  necessary  party. ^^^  A  member  of  a  firm  whose  stock  of 
goods  was  sold  and  the  proceeds  paid  into  court  for  distribu- 
tion is  a  x^roper  party  to  a  money  rule  against  the  sheriff  there- 
for.ii  "Where  the  sole  object  of  the  bill  is  to  have  the  property 
of  one  partner  (alleged  to  have  been  fraudulently  conveyed) 
applied  to  payment  of  a  judgment  against  the  firm,  and  no 
fraud  or  concealment  is  charged  against  the  co-partners,  dis- 
covery sought,  or  relief  asked,  they  are  not  necessaiy  parties. ^^ 
In  a  suit  to  set  aside  a  conveyance  of  partnei-ship  property  to  a 
trustee,  the  cestui  qui  trust  is  a  necessaiy  party. ^'  In  an  action 
for  dissolution  of  the  co-partnei'ship,  a  third  person  to  whom 
the  interest  of  one  partner  has  been  sold  is  a  necessary  party 
in  order  that  an  account  may  be  had.^*  In  a  suit  upon  a  bond 
given  to  a  retiring  partner,  and  conditioned  for  payment  of  the 


I 


71  >'EC::SSAI1Y   A>1>   PROPER   PARTIES.  ^   25  a 

firm  debts  for  a  breech  thereof,  creditors  of  the  firm  are  proper 
parties.^^ 

1  Parsons  v.  Howard,  2  \Voods,  3 ;  Bank  •?-.  Carrollton  liy.  11  Wall. 
->;  McKaig  v.  Hebb,  42  Md.  231;  Dunham  v.  Bischof,  47  Ind.  214; 
.'t'slphal  V.  Heiiuej'.  49  Iowa,  543;  see  Carson  i\  Kobertsou,  Chase's 

1 1  'C.  498. 

2  Burchard  v.  Boyce,  21  Ga.  12. 

3  Derby  v.  Gage,  33  111.  27 ;  Duck  v.  Abbott,  24  Ind.  340. 

4  Hawley  v.  Cramer,  4  Cowen,  721 ;  Bank  of  St.  Marvs  v.  St.  John, 
l->  Ala.  621. 

5  Vance  v.  Blair,  13  Ohio,  531. 

6  Palmer  v.  Stevens,  100  Mass.  431 ;  and  compare  Ilirsch  r.  Adler, 
JI  Ark.  333. 

7  Coe  V.  Whitbeck,  11  Paige,  44. 

8  Lockhart  v.  Harrell,  6  La.  An.  .532. 

9  McGuire  v.  Ramsey,  9  Ark.  519;  and  see  Vose  v.  Philbrook,  3 
Story,  .337. 

10  Moore  v.  Huntington,  17  Wall.  417;  and  compare  McCaskill  v. 
Lancashire,  83  X.  C.  398 ;  but  see  Jaclcson  v.  King,  8  Leigh,  63J. 

11  Wynne  v.  Millers,  61  Ga.  343. 

12  Randolph  v.  Daly,  16  X.  J.  Eq.  315. 

13  Day  r.  Wetherby,  23  Wis.  370. 

14  Webb  V.  Helion,  3  Rob.  (La.)  625 ;  Glvnn  v.  Rhetteplace,  2G  ^Iich. 
-'•■'  i. 

15  Wilson  V.  Stilwell,  9  Ohio  St.  470. 

§  25  a.  Corporations.  — Where  the  rights  and  interests  of  a 
corporation  are  involved  in  a  suit,  it  is  essential  that  all  persons 
in  interest  be  made  parties  or  some  satisfactory  reason  for  the 
omission  be  shown. i''  When  a  body  has  ceased  to  exist  as  a  cor- 
poration and  becomes  disorganized,  it  cannot  be  made  a  party  to 
a  suit.i^  So  when  the  assignor  of  shares  of  a  corporation  asks  re- 
lief against  future  assessments,  and  that  the  assignee  indemnify 
him  therefrom,  the  corporation  is  not  a  necessary  party  to  the 
proceedings. IS  When  stockholders  arc  not  numerous  they  may 
be  made  parties,  but  if  numerous  or  out  of  the  jurisdiction, 
and  their  rights  will  be  represented  without  them,  they  need 
not  be  joined. ^'^  In  a  bill  by  creditors  to  enforce  the  liability 
of  stoclvholders  for  the  debts  of  a  corporation,  an  assignee  of 
the  corporation  who  holds  its  assets  for  the  payment  of  its 
debts  is  a  necessary  party.  20  If  the  corporate  property  is 
exhausted,  and  the  bill  is  filed  for  the  mere  purpose  of  enforc- 


2  25  a         NEOESSAKT  AND  PBOPER  PAETIES.  72 

ing  the  personal  liability  of  the  stockholders,  the  corporation 
need  not  bo  made  a  party;  but  if  the  object  of  tlie  bill  is  to 
divest  the  corporation  of  property,  or  of  its  rights  or  privi- 
leges, on  the  ground  that  it  has  forfeited  its  clmrter  or 
surrendered  its  franchises,  it  must  be  joined.-^  Yv'hcn  the 
stockholders  bring  suit  against  the  directors  of  a  corporation 
to  recover  damages  for  waste  and  loss  of  corporate  assets 
caused  by  negligence  of  the  defendant,  the  corporation  should 
be  made  a  party; 22  and  where  the  object  of  tlic  suit  is  to 
recover  funds  alleged  to  have  been  fraudulently  oljtained  from 
the  corporation,  the  directors  should  be  made  parties. ^^  "When 
it  is  sought  to  compel  a  defendant  corxwration  to  account  for 
collateral  securities  of  a  third  person  held  by  it,  and  to  apply 
the  surplus  after  the  satisfaction  of  its  debt  to  payment  of 
claim  of  plaintiff,  such  third  person  is  a  necessary  party  to  the 
proceedings. 2*  "Wlien  the  owner  of  shares  of  stock  of  a  corpo- 
ration brings  suit  against  it  to  recover  a  certain  number  of 
shares,  alleging  a  transfer  by  the  corporation  to  a  third  person 
upon  presentation  of  his  certificate  accompanied  by  a  transfer 
under  a  forged  power  of  attorney,  it  was  held  such  third  per- 
son was  not  a  necessary  party  to  the  proceeding.^  When  two 
corporations  are  consolidated,  and  the  new  corporation  assumes 
the  pa\Tnent  of  the  obligations  of  the  original  corporation, 
the  directors  of  the  new  corporation  are  neither  necessarj-  nor 
proper  parties  to  a  suit  to  enforce  a  liability  of  one  of  such 
consolidating  corporations. '■^''"  In  a  proceeding  to  dissolve  and 
wind  up  a  corporation  the  stockliolders  are  necessary  parties.''^^ 

16  "Wescott  r.  Minn.  Mining-  Co.  23  Mich.  151  ,*  Lyman  v.  Bonnej-,  101 
Mass.  563 ;  see  Young  v.  Moses,  53  Ga.  G28. 

17  \\' allaco  v.  Board  of  Trustees,  84  N".  C.  164  ;  Jennings  v.  Hiiiklp, 
81  111.  184 ;  Thomas  v.  Morg-an  Co.  5J  111.  480. 

18  Kellogs  V.  Stockwell,  75  111.  73. 

19  Rome  Town  Co.  v.  Xagle,  58  Ga.  474;  Henrj-?'.  Jackson,  37  Vt. 
431  ;  Dana  v.  Brown,  1  Marsli.  J.  J.  306;  Mandeviile  «;.  E.iggs,  2  Peters, 
487 ;  Angel  v.  Lawton.  7G  X.  Y.  542. 

20  Harper  v.  Un^on  Manuf.  Co.  100  III.  230. 

21  trickles  V.  Rochester  Cv.  Bank,  11  Paige,  126 ;  and  sec  Dinsmore 
V.  A.  tfe  P.  Ry.  Co.  46  How.  Pr.  lUo ;  compare  also  W.  A.  «fc  G.  Ry.  Co 
V.  A.  &  W.  Ry.  Co.  19  Gratt.  5!)3. 

22  Hand  v.  Atlantic  Xat.  Banlc  55  How.  Pr.  231. 

23  Hughes  v.  McMurray,  6  Phila.  200. 


73  NECESSARY   AND   PROPER   PARTIES.  \  26 

■1\    Wilson  V.  City  Bank,  3  Sum.  42:J. 

2o  Pratt  r.  B.  &  A.  Ry.  Co.  126  Mass.  -MS ;  see  also  Telegraph  Co.  v. 
Davenport,  97  U.  S.  ;172. 

'2G  Chase  r.  Vanderbilt,  62  N.  V.  ;il3 ;  compare  Tyson  v.  Mahone.  1 
Hughes,  ».3. 

27    Chestnut  v.  Pennell,  92  111.  6.i ;  Cone  v.  Hamilton,  102  Mass.  'X,. 

\  26.  Who  are  necessary  or  proper  parties  in  snits 
relating  to  land  and  land  titles.  —  It  is  the  f,^t'neral  rule  in 
equity  that  in  suits  relating  to  land  all  persons  known  to  have 
an  interest  therein  should  be  made  parties. ^  Persons  benefic- 
ially interested  in  lands,  the  subject-matter  of  the  suit  should  be 
joined  as  parties  thereto.-  Thus,  when  lands  were  held  by  a 
deceased  partner  in  trust  for  the  firm,  his  heirs  were  held  to  be 
proper  parties  to  a  suit  for  a  conveyance,  by  a  person  claiming 
titl3  derived  from  the  firm.^  The  assignor  of  a  bond  for  title 
is  not  a  necessaiy  party  to  an  action  for  a  conveyance ;  *  but  the 
vendor  of  an  equitable  right  to  land  should  be  made  a  party  to 
such  suit.^  Generally  all  persons  who  acquire  an  interest  in  the 
premises  from  the  grantor  subsequent  to  the  execution  of  the 
contract  to  convey  are  necessary  parties  to  a  suit  for  the  speci- 
fic performance  of  the  contract. ^  If  the  widow  of  a  deceased 
vendor  claims  dower  in  the  premises  she  is  properly  joined.  "^ 
His  heirs  and  devisees  *^  may  also  be  made  parties.  The  pur- 
chaser, or  in  case  of  his  death,  his  heirs,  should  be  made  parties 
to  a  suit  by  his  assignee,  when  only  an  equitable  interest  in  the 
contract  has  been  transferred  by  the  assignment.^  When  both 
the  vendor  and  vendee  are  deceased,  and  the  administrator  of 
the  vendor  seeks  to  enforce  the  contract,  the  administrator  and 
heirs  of  the  vendee  are  necessary  parties.^"  If  the  suit  be 
against  the  heirs  of  the  vendor  to  enforce  performance  of  the 
contract,  those  heirs  who  have  already  conveyed  in  pursuance 
of  the  contract  need  not  be  made  parties  ;  ^^  but  his  adminis- 
trator should  be  made  a  party,  ^-  if  the  deed  conveying  the 
premises  to  the  vendor  was  destroyed  without  being  recorded, 
his  vendor  is  properly  joined ;  ^^  but  a  person  claiming  through 
the  administrator  need  not  be  made  a  party. i*  When  the  legal 
title  is  held  by  a  trustee  he  should  be  made  a  party.  ^^  and  if  the 
suit  be  on  account  of  a  contract  entered  into  in  his  character  as 

P.\RTIES  —  7 


2  26  NECESSARY  AND  PROPER  PARTIES.  74 

trustee,  and  on  behalf  of  the  trust  estate,  as  a  rule  the  cestui 
qui  tiiist  should  be  joined;*''  but  a  person  named  in  the  con- 
tract merely  as  an  agent  is  not  properly  made  a  party.*'  "When 
a  contract  is  sought  to  be  reformed  on  the  ground  of  mistake,  all 
persons  interested  should  be  made  parties  to  the  suit.  ***  If  a  mis- 
description running  through  the  deeds  of  several  prior  grantors 
is  sought  to  be  corrected,  such  grantors,  or,  if  dead,  their  heirs, 
should  be  made  parties.*^  If  the  grantee  has  sold  a  portion  of 
the  premises  thusmisdescribed,  and  followed  the  misdescription 
in  his  conveyance,  he  should  in  seeking  relief  from  his  grantor 
make  such  grantee  a  party ;  20  but  a  county  recorder  who  cor- 
rectly copied  the  deed  of  record  is  not  a  proper  party  to  the  suit.^* 
So  if  a  grantor  convey  all  his  interest  in  the  premises  to  two 
grantees  but  makes  a  mistake  as  to  the  interest  of  each  he  is  not  a 
necessary  party  to  a  bill  to  correct  the  mistake. 22  No  rule  can  be 
established  as  to  who  are  necessary  or  proper  parties  in  a  suit 
to  rescind  a  contract  that  will  be  applicable  in  all  cases,  but 
generally  those  only  who  have  an  interest  in  the  contract,  or 
who  would  be  prejudiced  by  the  granting  of  the  motion  need  be 
joined. '■^  When  a  conveyance  is  sought  to  be  set  aside  on  the 
ground  that  it  is  fraudulent  as  to  creditors,  the  grantor  is  prop- 
erly made  a  party ;  ^^  but  if  he  be  dead  his  administrator  is  not  a 
necessary  party.^a  The  grantees  named  in  a  conveyance  should 
be  parties  to  a  suit  to  rescind  the  same  whether  fraud  is 
charged  or  not ;  ^^  but  those  grantees  who  have  conveyed  their 
interests  in  the  premises  need  not  be  joined. ^^  So  if  the  ven- 
dee die  pending  suit,  his  administrator  need  not  be  made  a 
party; 28  the  heirs  of  the  grantor  are  not  necessary  parties,''^" 
but  the  heirs  of  the  grantee  should  be  joined.^"  If  several  con- 
veyances of  the  same  premises  are  sought  to  be  set  aside  as 
fraudulent,  the  heirs  of  an  intermediate  grantor  who  conveyed 
all  his  interest  with  covenants  of  warranty  are  not  necessary 
parties  unless  assets  from  their  ancestor  had  or  could  come  into 
their  hands.^*  Where  mortgages,  deeds  of  trust,  or  other  liens 
upon  land  are  sought  to  be  set  aside  and  vacated,  such  lien- 
holders  thereby  secured  should  be  made  parties  to  theproceed- 
ing.^2     So  also  when  their  rights  were  acquired  through  a 


75  XECESS.VET  AXD  PROPER  PARTIES.  §  26 

fraudulent  grantee  they  should  be  made  parties  to  a  suit  to  cancel 
the  conveyance  to  such  grantee.^^  A  judgment  debtor  after  a 
return  of  nulla  bona  is  not  a  necessary  party  to  a  suit  to  set 
aside  a  conveyance  of  his  lands  alleged  to  be  fraudulent,  the 
conveyance  being  good  as  against  him,  and  conveying  all  his 
interest.^*  In  a  suit  by  a  purchaser  at  execution  sale  to  dis- 
possess the  husband  of  the  lands  of  the  wife ,  she  should  be  a 
party.^^  In  suits  relating  to  the  homestead  brought  by  the 
widow,  the  heir  is  a  proper  party.^^  The  wife  also  is  a  proper 
party  to  all  suits  relating  to  the  homestead  i)roparty,  but  the 
presumption  of  homesteads  does  not  extend  to  a  tract  of  land 
adjoining  that  upon  which  defendant  resides,  so  as  to  make  his 
wife  a  necessary  party  to  a  suit  to  recover  the  tract.^"  So  in  a  suit 
brought  by  the  widow  to  enforce  her  claim  to  dower  in  lands 
fraudulently  conveyed  by  her  husband  in  order  to  defeat  her 
rights  therein,  the  heir  is  a  propar  party, ^*^  If  the  widow  in 
such  suit  seeks  also  to  recover  rents  and  profits,  all  subsequent 
purchasers  should  be  made  parties. ^'*  When  suit  is  brought  by 
a  trustee  for  the  benefit  of  creditors  to  subject  lands  of  the 
debtor  to  the  payment  of  his  debts,  all  the  creditors  need  not 
be  made  parties.*"  If  the  lands  sought  to  be  subjected  are 
alleged  to  have  been  purchased  by  the  debtor  in  the  name  of  a 
third  person,  he  is  a  necessary  party,  but  the  vendor  should  not 
be  joined.*^  A  bona  fide  purchaser  of  the  debtor's  interest  in 
the  lands  is  a  necessary  party.*^  So  is  a  donee. *3  Where  a 
judgment  debtor  has  conveyed  with  covenants  of  warranty  he 
is  an  indispenable  party.**  Fraudulent  grantees  should  be 
joined.*^  And  where  the  bill  is  tiled  against  one  surety  to  sub- 
ject his  lands  to  the  payment  of  his  principal's  debt,  all  the 
co-sureties  should  be  made  parties, *6  If  the  bill  be  filed  against 
a  partnership,  the  heirs  of  a  deceased  partner  are  not  necessary 
parties;*'  but  his  representatives  maybe  joined,**^  and  gener- 
ally the  personal  representatives  of  a  deceased  debtor  are  proper 
parties  to  the  suit.*^  In  a  suit  by  the  administrator  c/e  bonis 
■non  to  subject  lands  sold  by  his  predecessor  to  payment  of  the 
purchase-money,  the  heirs  at  law  are  proper  parties.^"  In  a 
proceeding  to  set  aside  a  final  settlement,  and  subject  the  real 


jj  26  NECESSARY  AND  PROPER  PARTIES.  76 

estate  of  the  decedent  to  the  payment  of  bis  debts  bis  ^\idow  and 
heirs  should  be  made  parties. ^^  When  the  surety  of  a  bond 
given  for  the  principal  price  of  land  joays  the  amount  due,  and 
takes  an  assignment  thereof,  he  may  proceed  to  enforce  his  lien, 
and  subject  the  land  to  payment  of  the  same  without  making 
his  assignor  a  party  to  the  i^roceeding.^^  In  an  action  of  eject- 
ment when  title  is  deraigned  from  a  common  grantor,  plaintiff 
claiming  from  the  heirs  of  B.,  and  defendant  from  B.  himself, 
which  latter  conveyance  misdescribed  the  premises  ;  this  fact, 
together  with  the  allegation  of  knowledge  on  the  part  of  plain tifl 
at  the  time  of  his  purchase  were  properly  set  up  as  an  equitable 
defense  without  making  the  heirs  parties.^''  In  an  action  by  the 
purchaser  of  the  husband's  interest  in  his  wife's  lands,  to  dis- 
possess the  husband  of  the  same,  the  wife  must  be  made  a 
party.^^  The  occupant  who  withholds  the  possession  should  be 
made  a  party ;  ^^  but  where  an  undivided  interest  in  land  is 
claimed,  an  occupant  who  is  in  possession  claiming  under  other 
intei'ests,  and  not  under  that  sued  for.  and  who  does  not  inter- 
fere with  the  right  of  plaintiff  should  not  be  joined. ^^  And 
generally  when  the  intei-est  of  a  person  would  only  be  collater- 
ally affected  by  the  judgment  he  need  not  be  a  party. ^^  In 
an  action  to  quiet  title  all  persons  necessary  to  a  complete  set- 
tlement of  the  question  may  properly  be  made  parties  ;  ^^  but 
an  executor  merely  as  such,  Avho  claims  no  interest  need  not  be 
made  a  party,^^  nor  the  holder  of  an  unrecorded  deed.*""  When 
property  was  conveyed  to  a  trustee  for  the  benefit  of  a  married 
woman  and  her  children  by  her  then  husband,  the  wife  gave  her 
note  for  the  purchase-money,  and  the  trustee  executed  a  moit- 
gage  to  secure  the  same,  the  mortgage  was  foreclosed  and  prem- 
ises sold,  the  wife  and  her  children  claiming  the  premises,  the 
purchaser  brought  suit  to  quiet  title,  held  that  neither  the  repre- 
sentative of  her  husband,  nor  a  new  trustee  (the  former  one 
being  dead)  need  be  made  parties. ^^  So  where  a  cestui  qui  &ust 
does  not  desii'e  to  avoid  the  conveyance,  he  need  not  be  made  a 
party  to  a  suit  by  a  purchaser  from  the  trustee  to  ciuiet  title. •'^ 

1    Mitchell  V.  Peters,  18  Iowa,  120 :  Irvin  v.  Smith,  17  Ohio,  238 ;  see 
Walker  v.  Pierce,  38  Vt.  97  ;  Baldwin  v.  Caufleld,  26  Miun.  44 ;  Steele 


77  >-ECESSAEY  AND  PKOPEE  PAETIES.  §   26 

?'.  Tavlor,  1  Minn.  278 ;  Agard  v.  Valencia,  39  Cal.  296 ;  Brodie  v.  8kel- 
t  ju,  11  Ark.  121 ;  Cone  v.  Hamilton,  102  Mass.  56. 

2  Mcllvoy  V.  Alsop,  43  INIiss.  372  ;  Hoxie  7'.  Carr,  1  Sum.  176 ;  Peer  v. 
Cookeron,  14  X.  J.  Eq.  363;  compare  Burliugamt  i:  Hobbs,  12  (Ti-uy, 
■i6d  ;  Colwell  ?■.  Miles,  2  Del.  Ch.  117 ;  Roach  v.  Hix,  57  Ala.  577  ;  «kiles 
i'.Switzer,  11  111.  5:«. 

3  Ind.  Rot.  Co.  v.  Bates,  14  Ind.  9;  compare  Piatt  v.  Vattieu,  1 
McLean,  146. 

4  Anderson  v.  Wells,  6  Ben.  542 ;  and  compare  Salmon  v.  Salmon, 
^JO  Cal.  301. 

5  Stewart  ?•.  Hutton.  3  Marsh.  J.  J.  179;  Eureka  M.  Co.  v.  W. 
Manuf.  Co.  47  Vt.  430 ;  Trunbie  v.  Boothby,  14  Ohio,  115. 

G  Express  Co.  r.  Railroad  Co.  99  U.  S.  191 ;  generally  Sutton  v.  Hay- 
don,  G2  Mo.  107 ;  Fullerton  v.  McCurdy,  4  Lans.  i:>4  ;  Morris  v.  Hoyt,  11 
Mich.  17  ;  Oliver  r.  Dix,  1  Dev.  &  B.  Eq.  15S  ;  Bendt  r.  Wetmore,  2 
Green  C.  E.  250 ;  Agard  v.  Valencia.  39  Cal.  296 ;  Fagaii  v.  Barnes,  14 
Fla.  57  ;  Bacot  v.  Wetmore.  17  N.  J.  Eq.  2.55  :  Browne  v.  Bitter,  11  Green 
C.  E.  45^;  French  v.  Shoemaker,  14  Wall.  315;  Lambert  r.  JSTanny,  2 
Munf.  196 ;  Trimble  v.  Boothby,  14  Ohio,  119. 

7  Armstrong  v.  Wvandotte  B.  Co.  1  McCahon,  170;  see  Cock  v. 
Evans,  9  Yerg,  234  ;  Hill  v.  Smith,  32  N.  J.  Eq.  473. 

8  Moore  v.  Murrah,  40  Ala.  575;  Hodges  v.  Hodges,  2  Dev.  &  B. 
Eq.  72;  Cock  v.  Evans,  9  Yerg.  2:17;  Mitchell  r.  fechell,49  Miss.  126; 
Keggus  V.  Allcorn,  9  Tex.  33 ;  Craig  v.  Johnson,  3  Marsh.  J.  J.  572. 

9  Knott  V.  Steppens,  3  Oreg.  269 ;  generallv  Muller  v.  Bear.  3  Paige, 
46S  ;  Eur>jka  Marble  Co.  r.  W.  Manuf.  Co.  47  Vt.  448  ;  Hoover  r.  Don- 
ally,  3  Hen.  &  M.  .316;  Alexander  r.  Hoffman,  70  111.  114;  Bradley  •?-. 
Morgan,  2  Marsh.  A.  K.  370 ;  compare  Currier  r.  Howard,  14  Gray,  511 ; 
Xoonan  v.  Orton,  4  Wis.  335  ;  Allison  v.  Shilling,  27  Tex.  4-50  ;  aud  see 
May  V.  Sullivan,  8  Ga.  541 ;  Longworth  v.  Taylor,  1  McLean,  395. 

10  Anshutz  Appeal,  34  Pa.  St.  376. 

11  Barnard  v.  Macy,  11  Ind.  538 ;  and  see  Soper  v.  Kipp,  5  ]Nr.  J.  Eq. 

333. 

12  Caifax  v.  Colfax,  32  X.  J.  Eq.  207 ;  Hill  v.  Smith,  S2  X.  J.  Eq.  473 ; 
Putter.sou  v.  Copeland,  52  How.  Pr.  404, 

13  Callihan  v.  Hall,  4  W.  Va.  531. 

14  Patterson  f,  Copeland,  52  How.  Pr,  464. 

15  Morrow  ?■.  Lawrence,  7  Wis.  574  ;  Sutton  v.  Hayden,  62  Mo.  115 ; 
and  see  Carter  v.  Thompson,  41  Ala.  3/9;  Anshutz  Appeal,  M  Pa. 
St.  375  ;  compare  Bull  v.  Bell,  4  Wis.  75  ;  Champlin  v.  Parish,  3  Edw. 
Cb.  614 ;  Eastern  Ex.  Co.  v.  Ry.  Co.  99  U.  S.  191. 

16  Trustees  r.  Gleason,  15  Fla.  399  ;  Gaytes  v.  Franklin  Sav.  Bank, 
8o  111.  257  ;  White  v.  Watkin,  23  Mo.  429  ;  compare  Gibbes  v.  Black- 
well,  37  111.  196  ;  Goddin  v,  Vaughn,  14  Gratt.  117. 

17  Roby  V.  Ccssett,  73  111.  640  ;  Daphney  v.  Hall,  20  Ind.  264. 

IS  Hellman  v.  Schneider,  75  111.  423  ;  and  see  Conkling  v.  Davis,  53 
How.  Pa.  40  J ;  generally  Moore  v.  Munn.  6J  111.  591 ;  Shackelford  v. 
BaIlock,34  Ala.419. 

19  Flanders  ?•.  McClauahan,  24  Iowa,  486. 

20  McLennan  v.  Johnston,  60  111.  307. 

21  King  V.  Bales,  44  Ind.  221. 

22  Briegel  v.  Moeller,  82  111.  2.57. 


§  26  NECESSARY  ASH  PROPER  PARTIES.  78 

23  Beach  v.  Dennis,  47  Ala.  264 ;  generally  Stockmeyer  v.  Weid- 
ner,  32  La.  An.  107  ;  Ralston  v.  Lahee,  8  Iowa,  23 ;  Gossett  v.  Kent,  19 
Ark.  603;  Carson  v.  Robertson,  Chase  Dec.  475;  Wade  i.  Rusher,  4 
Bosw.  544 ;  Cooley  v.  Scarlett,  36  111.  317. 

24  Potter  v.  Phillips,  44  Iowa.  356;  see  also  Taylor  v.  Webb,  54 
Miss.  37. 

25  Stockard  v.  Pinkard,  6  Humph.  121;  Mayberry  v.  McClung,  51 
Mo.  259  ;  Jackman  v.  Robinson,  64  Mo.  290 ;  compare  Taylor  v.  Webb, 
54  Miss.  36  ;  Danner  v.  Danner,  30  N.  J.  Eq.  63  ;  Smith  ?-.  Grim,  26  Pa. 
St.  96  ;  Dockrav  v.  Mason,  5S  Me.  180 ;  Hall  v.  James,  75  Va.  114  ;  con- 
tra, Boggs  V.  McCoy,  15  W.  Va.  346. 

26  Audibon  Co.  v.  Emigrant  Co.  40  Iowa,  465;  Smith  v.  Loda,  5 
Marsh.  J.  J.  7  ;  Candee  v.  Burke,  1  Hun,  546  ;  Bank  r.  Harris,  81  X.  C. 
207  ;  Wickliflfe  v.  Lee,  4  Dana,  3:? ;  Boggs  v.  Merced  M.  Co.  14  Cal.  355  ; 
Dearmond  v.  Dearmond,  10  Ind.  191. 

27  Jackman  v.  Robinson,  64  Mo.  292 ;  see  Dearmond  v.  Dearmond, 
10  Ind.  191. 

23  McCutchen  r.  Pique,  4  Heisk.  565 ;  compare  Your.g  v.  Bilder- 
back,  2  Greene,  206 ;  Romouse  v.  Hendnckson,  24  N.  J.  Eq.  2.J3. 

29  Hall  V.  James,  75  Va.  114  ;  McCutchen  v.  Pique,  4  Heisk.  5GD. 

30  McCutchen  v.  Pique,  4  Heisk.  569. 

31  Craig  v.  Smith,  94  111.  473 ;  compare  Williams  v.  Wilson,  1  Dana, 
159  ;  Dinwiddle  v.  Kelley,  46  Ind.  393. 

32  DunTilin  Co.  v.  Clark,  51  Mo.  62;  and  see  Tichenor  v.  Allen,  13 
Gratt.  30 ;  Probasco  v.  Probasco,  30  N.  J.  Eq.  63 ;  generally  Trustees  v, 
Brauer,  71  111.  546 ;  Wilburn  v.  Shofiford,  4  Sneed,  700  ;  Scanlan  v.  Cobb, 
85  111.  296. 

33  Whittemore  v.  Cowell,  7  Allen,  448;  generally  Miller  v.  Jami- 
son, 24  N.  J.  Eq.  42  ;  Radcliffe  v.  Noyes,  43  111.  319 ;  Probasco  v.  Pro- 
basco, 30  N.  J.  Eq.  63 ;  compare  Carson  v.  Robertson,  Chase  Dec.  4'jii. 

34  Taylor  v.  Webb,  54  N.  Y.  36 ;  Fox  v.  Moyer,  54  X.  Y.  125 ;  but  r,co 
Miltenberger  v.  Weems,  31  La.  An.  259. 

35  Cecil  r.  Smith,  81  N.  C.  286;  compare  Williamson  v.  Paxton,  IS 
Gratt.  489  ;  see  generally  Baldwin  v.  Thompson,  15  Iowa.  50!. 

36  Showers  v.  Robinson,  43  Mich.  582;  Palmer  v.  Blair,  25  Iowa, 
231. 

37  Bunce  v.  Bidwell,  43  Mich.  543. 

38  Gilson  v.  Hutchinson,  120  Mass.  29. 

39  Dick  V.  Doughten,  1  Del.  Ch.  321 ;  and  see  Morse  v.  Thorsell,  78 
111.  600  ;  Blair  v.  Thompson,  11  Gratt.  441. 

40  Robinson  v.  Robinson,  11  Bush,  177. 

41  Bronsema  v.  Rind,  2  La.  An.  959  ;  but  compare  Logan  v.  Hale, 
42  Cal.  645. 

42  Lt.  Street  Bridge  Co.  v.  Bannon,  47  Md.  141 ;  Taylor  r.  Shindle,  2 
Gratt.  44  ;  Bryant  v.  Young,  21  Ala.  265. 

43  Sayers  v.  Wall,  2G  Gratt.  355. 

44  Shear  1'.  Campbell,  4  Scam.  426;  compare  generally.  Hall  v. 
James,  75  Va.  114. 

45  Henderson  ?•.  Henderson,  9  Gratt.  394  ;  Bryant  v.  Young,  21  Ala. 
265 ;  see  Price  v.  Thrash  30  Gratt.  515. 

46  Hall  V.  James,  75  Va.  114. 

47  McCaskill  v.  Lancashire,  83  N.  C.  399. 


79  KECESSAKY  AXD  PROPEB  PARTIES.  §  27 

43    Jackson  v.  King,  S  Leigh,  689. 

-D  McDowell  V.  Cochran.  11  111.  32;  Pharis  v.  Lc-ac'.inm!),  •:d  Ala. 
675;  Buford  v.  liawling.  5  Dana,  284. 

50  Wallace  v.  Nichols,  53  Ala.  323. 

51  Heilkamp  r.  Berdenstein,  3  Mo.  App.  453;  Elliott  r.  Warring, 5 
Mon.  240. 

52  Oruohundro  v.  Heuson,  26  Gratt.  oil. 

53  Lestrado  ?'.  Barth,  19  Cal.  673 ;  compare  Davis  t'.  I1;>sc^vc  It.  G3 
Tgx.  314  ;  York  r.  Cartweight,  42  Tex.  141. 

54  Cecil  V.  Smith,  81  IT.  C.  235. 

55  Hawkins  r.  Boicher  t,  23  Cal.  535 ;  Hendricks  v.  Ila::so:! ,  42  Mich. 
104. 

5G    Waring  v.  Crow,  11  Cal.  :367. 

57  Dnpout  V.  Davis,  35  Wis.  640 ;  and  see  Bartlett  v.  Borden,  13 
Bush,  45. 

53  Beckwith  v.  Darget,  18  Iowa,  303 ;  Handsu  v.  McClanuhan,  24 
Iowa.  487 ;  Baldwin  v.  Caufield,  26  Minn.  53 ;  St.  Jo.  Mauf.  Co.  v.  Dag- 
gett, 84  111.  5.57  ;  Peralta  v.  Simon,  5  Cal.  313. 

53  Meriweather  v.  Hite,  2  Marsh.  J.  J.  182. 

69  Clark  v.  Connor,  23  Iowa,  311. 

61  Howards  v.  Da\'ls,  6  Tex.  175. 

62  Gridley  v.  Wynant,  23  How.  501. 

§  27.  "Who  arc  necessary  or  proper  parties  i::  suits  to 
enforce  liens.  —  Wiien  several  persons  hold  lieus  upon  the 
same  property  they  may  properly  be  made  parties  to  a  suit  by 
cue  of  their  number  to  enforce  his  rights.^  When  one  joint 
vendor  of  land  is  dead  his  representatives  are  necessary  parties 
to  a  bill  by  the  survivor  to  enforce  payment  of  the  purchase 
price  of  land.^  All  holders  of  notes  executed  to  cover  the  pur- 
chase price  of  land  should  be  made  parties  to  a  suit  by  the 
holder  of  one  of  such  notes  to  enforce  his  lien  against  the 
premises  conveyed.^  The  vendee  or  his  representatives  may 
be  parties  to  a  suit  by  the  vendor  against  a  purchaser  to  re- 
cover the  balance  of  the  purchase  price.'*  The  widow  of 
deceased  vendee  is  a  proper  party  when  the  suit  is  brought 
against  his  estate  ^  to  a  bill  by  the  aelministrator  of  the  deceased 
vendor  to  enforce  payment  of  the  purchase  price  the  heirs  are 
necessary  parties.**  The  heirs  of  the  deceased  ve-nd^e  should 
also  be  joined.'  When  the  vendee  has  conveyeel  all  interest  he 
need  not  be  made  a  party;"  but  Lis  sub-vendees  should  be 
joined. **    Encumbrancers  are  proper  but  not  necessary  parties 


§  27  XECESSAEY  AND  PKOPEB  PAETIES.  80 

to  the  suit.^"  The  vendee  has  the  right  to  have  claimants  of 
an  outstanding  title  made  parties  to  a  suit  by  an  insolvent 
vendor ;  ^^  but  a  mere  agent  of  defendant  need  not  be  made  a 
party.i-  In  proceedings  to  foreclose  a  mechanic's  lien  the 
owner  of  the  premises  is  the  only  necessary  party  defendant. i>* 
"When  no  personal  judgment  is  demanded  the  owner  Avho  has 
transferred  his  interest  subsequently  to  the  contract  for  labor 
or  materials  is  not  a  necessary  party,  i'*  A  contractor  ^^  or  sub- 
contractor is  a  proper  party  to  the  action,  but  a  mere  agent 
need  not  be  joined,^'' nor  need  a  prior  lienholder  be  made  a 
party.^^  "Where  laborers  are  employed  in  cutting  and  hauling 
logs  they  have  a  lien  thereon  for  sei-vices,  and  if  employed  by 
the  contractor  they  need  not  make  the  owner  a  party  to  a  suit 
to  enforce  the  lien.^^  So  far  as  mere  legal  rights  are  con- 
cerned upon  a  bill  of  foreclosure  the  only  proper  parties  to  the 
suit  are  the  mortgagor  and  mortgagee,  and  those  who  have 
acquired  rights  under  them  subsequently  to  the  mortgage.'** 
One  who  claims  adversely  to  the  mortgagor,  and  prior  to  the 
mortgage,  should  not  be  made  a  party  for  the  purpose  of  try- 
ing his  title. ■'^"  X.  made  a  note  to  Z.,  who  transferred  same  to 
A.,  and  secured  by  mortgage,  in  suit  by  A.  to  foreclose  the 
same,  and  for  judgment  against  botli  X.  and  Z.  for  deficiency 
they  were  properly  joined  as  parties  ;'^i  but  where  X.  mort- 
gages his  land  to  A.  to  secure  the  note  of  Z.  in  a  suit  by  A.  to 
foreclose  the  mortgage,  no  personal  judgment  being  demanded, 
Z.  is  not  a  necessary  party. '-^^  ^g  ^  rule  the  mortgagor  should 
be  made  a  party  to  foreclosure  suit ;  ^^  but  if  subsequently  to 
e  date  of  mortgage  he  has  conveyed  all  his  interest  in  the 
ortgaged  premises,  and  no  personal  judgment  is  asked  against 
him,  he  is  not  a  necessary  party."^*  The  wife  of  the  mortgagor 
is  not  a  necessary  party  in  an  action  to  foreclose  a  mortgage 
executed  by  the  husband  at  the  time  of  purchase  to  secure  the 
purchase  price. ^^  "When  it  is  sought  to  foreclose  the  hemestead 
right  the  wife  should  be  made  a  party. ^^  So  where  the  Avife  joins 
with  the  husband  in  executing  the  mortgage  she  is  a  necessary 
party  to  a  foreclosure  suit  in  order  to  bar  her  claim  to  dower ;  "-^^ 
if  she  did  not  join  in  the  mortgage  she  is  a  proper  i^arty  to  the 


81  XECESSAET  AN1)  PBOPEB  PAETIES.  §  27 

suit. 28  The  mortgagee  is  a  necessary  party  when  he  has 
assigned  only  an  equitable  interest  in  the  mortgage  debt  and 
security  ;  ^^  but  if  the  assignment  is  absolute,  and  no  interest 
remains  in  the  mortgagee,  he  need  not  be  made  a  party  ; '"  if  he 
guarantees  payment  of  the  debt  he  is  properly  made  a  party.^^ 
When  a  mortgage  is  given  to  secure  a  firm  debt  all  the  partners 
should  be  parties  to  a  suit  to  foreclose  the  same,  although  the 
mortgage  was  taken  in  the  name  of  one  partner,^-  unLss  he 
holds  as  trustee  for  the  firm."^  When  a  suit  is  brought  by  a 
cestui  que  trust  to  foreclose  a  mortgage  given  for  his  benefit  to 
a  trustee,  such  trustee  should  be  made  a  party.^^  When  a 
trustee  is  interposed  between  a  lender  and  borrower  of  money 
merely  to  enable  the  lender  to  obtain  payment  through  the 
exercise  by  the  trustee  of  powers  conferred  upon  him  by  a 
mortgage  or  deed  of  trust,  and  the  trustee  can  only  be  called 
upon  in  case  of  default  on  the  part  of  the  grantor  in  perform- 
ing the  conditions  of  the  instrument,  both  trustee  and  cestui 
que  trust  must  be  made  parties. ^^  When  a  trustee  executes  a 
mortgage  upon  the  trust  estate,  the  cestui  que  trust  should  be 
made  a  j^arty  to  a  suit  to  foreclose  the  same.^^"  and  when  a 
mortgage  is  made  to  a  trustee  the  cesfuis  should  be  joined  in 
the  foreclosure  suit.^'  The  representative  of  a  deceased  mort- 
gagor is  not  a  necessary  party  to  a  foreclosure  suit,^"  if  the 
decedent  h^  conveyed  all  interestTin  the  mortgaged  premises, 
and  no  denciency  is  demanded  against  his  estate  ;^''  but  if  a 
deficiency  is  sought  against  the  estate  the  administrator  should 
be  joined. •*"  The  administrator  of  a  deceased  mortgagee  should 
bo  a  party.-^i  The  heir  also  of  the  mortgagor  must  be  joined  ;  -^^ 
so  if  the  mortgagor  die  after  suit  commenced,  and  before 
judgment,^-*  the  heu*  of  a  deceased  mortgagee  is  not  a  neces- 
sary party  complainant,**  nor  need  the  heirs  of  a  subsequent 
mortgagee  be  joined.*^  Persons  holehng  judgment  on  attach- 
ment liens  upon  the  mortgagee!  premises  are  properly  made 
parties ;  '**  and  generally  both  prior  *''  and  subsequent  ^^  encum- 
brancers are  proper,  although  not  necessary  parties.  When 
prior  encumbrancers  are  maelc  parties,  it  is  only  for  the  pur- 
pose of  liquidating  the  amount  of  their  claims,   and  paying 


u^ 


\  27  >'ECESSAEY   AND   PROPER   PARTIES.  82 

them  out  of  the  proceeds  of  the  sale.  Purchasers  of  the  mort- 
gaged premises  deriving  title  from  the  mortgagor  subsequently 
to  the  dat3  of  the  mortgage  are  necessary  parties  ;  -^^  but  mesne 
purchasers  who  claim  no  interest  in  the  premises  need  not  be 
joiucd.s"  So  also  the  owner  of  the  equity  of  redemption  must 
made  a  j)arty;»i  but  persons  who  acquire  interests  in  the 
mortgaged  premises  after  suit  commenced  and  lispendens 
filed  arc  pendente  Hie  purchasers,  and  need  not  be  parties  to 
the  foreclosure  suit.S'-^ 


1  Camion  ?>.  ;^^cDaniel,  46  Tex.  .314 ;  generally  Hinchman  r.  Bal- 
lard, 7  W.  Va.  157;  Pugh  v.  Bond,  9  Ga.  326;  Averj-  r.  Patten,  7 
Johns.  Cli.  211;  and  see  Wingard  v.  Banning,  39  Cal.  548;  Smith  v. 
Lytle,  27  Minn.  189;  compare  Marling  •?'.  Eobrecht,  13  AV.  Va.  443; 
Hoffman  ?•.  Shields,  4  Wa.  Va.  490 ;  Ripperdou  v.  Cozine,  8  Mou.  B. 
465 ;  Ferris  v.  Dickerson,  47  Ind.  382. 

2  Stevenson  v.  Maters,  67  111.  131. 

3  Jenkins  r.  Smith,  4  Met.  (Ky.)  S84. 

4  Duval  V.  Bibb,  4  Har.  &  McH.  113 ;  and  see  Black  ?•.  Rav,  1  Dev. 
&  B.  Eq.  443 ;  Jackson  v.  Hill,  39  Tex.  495 ;  contra,  Edwards  v.  Ed- 
wards. 5  Heisk.  123. 

5  Edwards  v.  Edwards,  5  Heisk.  123  ;  compare  Beugger  ?'.  TJnden- 
berger,  53  Mo.  365 ;  Auerbach  v.  Pritchett,  58  Ala.  451. 

G  Burger  v.  Potter,  32  111.  66 ;  Mott  v.  Carter,  20  Gratt.  127 ;  Mc- 
Cully  V.  Chapman,  53  Ala.  325 ;  Leeper  v.  Byon,  68  Mo.  216. 

7  Jackson  v.  Hill,  39  Tex.  495 ;  Edwards  v.  Edwards,  5  Heisk.  128  ; 
but  see  Thornton  v.  Mai,  49  Ala.  590. 

S  "Wood  V.  Loughmiller,  48  Tex.  803;  compare  also  Hughes  v. 
Hatchett,  55  Ala.  544  ;  Bozeman  v.  Bon,  49  Ala.  76. 

9    Davis  V.  Rankin,  50  Tex.  279 ;  Beirne  v.  Brown,  4  W.  Va.  72. 

10  Leese  v.  Sherwood,  21  Cal.  163 ;  Chapman  v.  Sacour,  25  Tex.  94. 

11  Estell  V.  Cole,  52  Tex.  177 ;  Demaret  v.  Benhett,  29  Tex.  267. 

12  Milner  v.  Ramsey,  48  Ala.  2:0. 

•    13    Tompkins  v.  Horton,  25  N.  J.  Eq.  292  ;  see  Howard  ?-.  Robinson, 
5  Cush.  120 ;  contra,  Mehrle  v.  Dunne,  75  111.  240. 

14  Jennings  v.  Hinkle,  81  111,  183 ;  Kellenberger  ?'.  Boyer,  37  Ind.  189. 

15  Hortskotte  v.  Menter,  50  Mo.  159;  Mehrle  r.  Dunne,  75  i:i.  240; 
Carney  v.  La  Crosse  &  M.  Ry.  Co.  15  Wis.  503. 

16  Hooper  v.  Flood,  54  Cal.  219;  and  see  Klaus  v.  Green  i:ay,  ;>4 
Wis.  629 ;  Charboneau  v.  Henni,  24  Wis.  254. 

17  Smith  V.  Shaffer,  46  Md.  578. 

13  Munger  v.  Lenroot,  32  Wis.  541. 

10    Gage  V.  Perry,  93  111.  179  ;  Chamberlain  v.  Lyell,  3  Mich.  459. 

20  Gage  v.  Perrv,  93  111.  179;  Chamberlain  v.  Lyell,  3  Mich.  459; 
Dial  V.  Reynolds,  li6  U.  S.  .341;  Shellenbarger  r.  Biser,  5  Neb.  200; 
Macloon  v.  Smith,  49  Wis.  212;  Banning  v.  Bradford,  21  Minn.  814; 
Croghan  v.  Minor,  .58  Cal.  15 ;  Brundaya  v.  D.  &  F.  M.  Soc.  50  Barb. 
213 ;  McDermon  v.  Burke,  16  Cal.  687. 


83  >rECESSiRY  A>'D  PEOPEK  PAKTIES.  ^  27 

21  Potter  t'.  Hussey,  1  Utah,  249 ;  see  Young  v.  M.  &  i:.  Ry.  Co.  2 
Woods,  613 ;  Da\is  v,  Converse,  35  Vt.  au6. 

22  Kearsing  v.  Kilian,  IS  Cal.  493  ;  see  Dow  v.  Seely,  2D  111.  496  ;  De 
Cottes  V.  Jetiers,  7  Fla.  28-5  ;  compare  Vaughn  r.  Cushing,  23  Ind.  184, 

23  Crenshaw  v.  Thackston,  14  S.  C.  441 ;  Hutchinson  v.  Johnson,  3 
Halst.  Ch.  4S;  Stucker  v.  Stucker,  3  Marsh.  J.  J.  301;  Gooclsnow  v. 
Ewer,  16  Cal.  465;  Harvey  v.  Thornton,  14  111.  21S ;  Wall  v.  Boisge- 
rard,  11  Smedes  &  il.  5S6 ;  Kunkel  v.  IVTarkell,  26  Md.  404. 

24  Stevens  v.  Campbell,  21  Ind.  472;  Stewart  v.  Hutchinson,  21 
How.  Pr.  1S2;  Van  Xest  v.  Latson,  19  Barb.  607;  ^V^i^ht  v.  Eavcr,,  10 
Rich.  Eq.  -bOl ;  Harvey  v.  Thornton,  17  111.  217  ;  Mims  v.  Mims,  S5  Ala. 
25 ;  Vreeland  v.  Loubat,  1  Green  Ch.  101 ;  compare  Marsh  v.  Green,  79 
111.  ;«6. 

25  Amphlett  ?-.  Hibbard,  29  Mich.  302  ;  Fletcher  v.  Holmes,  32  Ind. 
506  ;  see  McClure  v.  Holbrook,  39  Mich.  43;  Thornton  v.  Pigg,  24  Mo. 
251. 

26  Chase  v.  Abbott,  20  Iowa,  15D  ;  Shoemaker  v.  Gardner,  19  Mich. 
97 ;  Moss  r.  Warner,  10  Cal.  297 ;  compare  Amphlett  v.  Hibbard,  2J 
Midi.  2J3  ;  Wilcox  v.  Scott,  23  Ohio  St.  639. 

27  Foster  v.  Hickox,  SS  V.'is.  411 ;  McArthur  v.  Franklin,  15  Ohio  St. 
503:  Byrne  v.  Taylor,  46  Mich.  97;  Eslavy  v.  Leprater,  21  Ala.  522; 
contra,  Thornton  r.  Pigg,  26  Mo.  2-51. 

25  Foster  v.  Hicox,  33  Wis.  411 ;  see  Mims  v.  Mims,  1  Humph.  4.%. 

29  Front  v.  Hoge,  57  Ala.  31 ;  Miller  v.  Henderson,  2  Stockt.  Ch. 
322  ;  Christie  r.  Herrick.  1  Barb.  Ch.  259. 

30  Gower  v.  Howe,  20  Ind.  397  ;  Grant  v.  Ludlow,  8  Ohio  St.  0 ;  Len- 
non  ?•.  Port?r,  2  Gray,  475;  Huduit  ?-.  Tomson,  11  Green  C.  E.  2^; 
compare  O'Mohuno  v.  Hensou,  26  Gratt.  514. 

31  Jarman  v.  Wiswall,  24  X.  J.  Eq.  270;  Mackay  v.  Blackett,  9 
Paige,  4:i3. 

32  Xoyes  r.  Sawyer,  3  Vt.  160 ;  Do  Grieff  r.  Wilson,  :;0  X.  J.  Eq.  426. 
a3    Shelden  v.  Bennett,  44  Mich.  636. 

34  Tucker  r.  Silver.  9  Iowa,  262  ;  see  Clark  v.  Manniiig,  95  HI.  531 ; 
Case  V.  Price,  17  How.  Pr.  ;i50;  McGraw  v.  Bayard,  tG  111.  ISi;  Willis 
?'.  Henderson.  4  Scam,  20, 

S.5    McGraw  ?•.  Bayard,  96  111.  1.5:^ ;  Scanlan  v.  Cobb,  85  111.  2C6. 

26  Mavricu  v.  Grier,  3  Xev.  56  ;  Van  Vechton  v.  Terrj'.  2  Johns.  Ch. 
197. 

37  Allen  v.  Roll,  25  X.  J,  Eq,  165 ;  compare  Van  Vochten  v.  Terry, 
2  Johns.  Ch.  197  ;  Wilhnk  v.  ]SL  Canal  Co.  3  Grey.  ;^7 ;  Williamson  v. 
X.  J.  Southern  Ry.  Co,  25  X,  J,  Eq,  19 ;  McElreth  v.  The  P,  &  S,  Ry. 
Co.  2SLeg.  Int.  197. 

38  Averritt  v.  Ward,  Busb.  Eq.  192 ;  generally  Savings  Ass'n  v. 
Vandevere,  3  Stockt.  Ch.  ;i83  ;  Byrne  v.  Taylor,  46  Miss.  97  ;  compare 
Mebane  v.  Mebane.  80  X.  C.  3S ;  contra,  Dooley  v.  Villalonga,  61  Ala. 
];«:  Bryce  v.  Bowers,  11  Rich.  Eq.  42;  Hitchcock  v.  U.  S.  Bank,  7 
Ala.  442. 

3D  Hibernia  Sav.  &  Loan  Soc,  v.  Herbert,  5T  Cal.  578 ;  Abbott  v. 
Godfrey,  1  Mich.  180 ;  contra.  Miles  v.  Smith,  22  Mo,  503. 

40  Leonard  v.  Morris,  9  Paige,  91 ;  Dooley  v.  Villalonga,  61  Ala,  i;Jo  ; 
Belloe  V.  Rogers,  9  Cat.  125. 

41  Vanhorn  v.  Duckworth,  7  Ired.  Eq.  26:^;  King  v.  Seals,  45  Ala. 
419 ;  Freeman  v.  Scofield,  16  X.  J.  Eq.  2.) ;  Smith  v.  T.  D.  Falls  Co.  3 
Green  Ch.  509. 


§  28  XECESSAEY  AND  PROPER  PARTIES.  8i 

42  Britton  v.  Hunt,  9  Kan.  230 ;  George  v.  Cooper,  15  W.  Va.  674 ; 
Renshaw  v.  Taylor,  7  Oreg.  320;  Labanve  v.  Slack,  31  La.  An.  140; 
compare  Jeneson  v.  Jenesoii,  6()  111.  264  ;  but  see  Truesdell  v.  Rhodes, 
26  ^^'is.  218  ;  Houghton  v.  Mariner.  7  Wis.  244  ;  Leonard  v.  Morris,  9 
Paige,  92  ;  Minis  t-.  :\[ims,  ."5  Ala.  25. 

43  Hunt  V.  Acre,  23  Ala.  537  ;  see  Givens  v.  Davenport,  8  Tex.  455. 

44  Griffin  v.  Lovell,  42  Miss.  403  ;  Kinna  v.  Smith,  2  Green  Ch.  if. ; 
contra,  Huggings  v.  Hull,  10  Ala.  283. 

45  Shaw  r.  McXish,  1  Barb.  Ch.  ;?28. 

46  Pine  v.  Shannon,  ;^0  X.  J.  Eq.  501  ;  De  Saussure  v.  Bollmann,  7 
Rich.  333  ;  Morris  v.  Wheeler,  45  X.  Y.  709  ;  Bruen  i'.  Crane,  1  Green 
Ch.  li-iS  ;  see  also  Grant  v.  Ludlow.  8  Ohio  St.  9  ;  Hemsler  v.  Nickum, 
38  Md.  274. 

47  San  Francisco  r.  Lawton,  IS  Cal.  473  ;  Merritt  v.  Wells,  IS  Ind. 
172;  Huduit  v.  Xash,  1  Green  C.  E.  552;  Smith  et  al.  Claimants,  4 
Xov.  255;  Wheat  c.  Moss,  16  Ark.  256;  Walker  r.  Bank  of  Mobile,  6 
Ala.  460  ;  Evans  v.  McLucas,  12  S.  C.  61 ;  and  see  Barton  r.  Kings- 
burv,  43  Vt.  642;  Jerome  v.  McCarter,  94  U.  S.  734;  Augustine  v. 
Doud,  1  Bradf.  594  ;  JMorse  v.  Larkin,  46  Vt.  371. 

48  Leonard  r.  CJroome,  47  Md.  505  ;  Rice  v.  Hall,  41  Wis.  456  ;  Brown 
V.  Xevitt,  5  Cush.  814  ;  Ritch  r.  Eichelberger,  13  Fla.  178  ;  Mack  r. 
Grovor,  12  Ind.  255;  Besser  v.  Hawthorn,  3  Oreg.  131;  compare 
Schneider  v.  Stailir,  20  Mo.  271  ;  see  also  Cooper  v.  Martin,  1  Dana,  26  ; 
Shinn  v.  Shinn,  91  111.  482  ;  Colehour  v.  St.  Sav.  Inst.  90  111.  153  ;  Alex- 
ander V.  Greenwood,  24  Cal.  50J  ;  Montgomery  v.  Tutt,  11  Cal.  314  ; 
Vanderveer  v.  Holcomb,  2  Green  C.  E.  89. 

49  Leucox  v.  Reed.  12  Kan.  223  ;  Merritt  v.  Phenix,  48  Ala.  91  ; 
Goodenow  v.  Ewer,  16  Cal.  46J  ;  Boggs  v.  Hargrave,  16  Cal.  562  ;  com- 
pare Ufford  r.  Wells,  52  Tex.  616  ;  Schmeltz  v.  Garey,  49  Tex.  58  ;  and 
s?e  Clark  i\  Connor,  28  Iowa,  315. 

50  Merritt  v.  Phenix,  48  Ala.  91  ;  Soule  v.  Albee,  31  Vt.  145. 

51  Reed  v.  Marble,  10  Paige,  413 ;  Redfield  v.  Hare,  12  Iowa.  ;w7  ; 
Mills  V.  Traylor,  ,iO  Tex.  11  ;  Horton  v.  Saunders,  13  Mich.  413 ;  Hod- 
son  i\  Treat,  7  Wis.  278  ;  Merriman  v.  Hvde,  9  Neb.  120  ;  Fahie  v. 
Pressly,  2  Oreg.  23  ;  N.  Y.  L.  Ins.  Co.  v.  Bailey,  3  Edw.  Ch.  440. 

52  Horn  r.  Jones.  23  Cal.  199  ;  Cook  v.  Manicus.  5  Johns.  Ch.  94  ; 
Linn  v.  Patton,  10  W.  Va.  ISS  ;  Hull  v.  Lyon,  27  3Io.  576  ;  Bennett  r. 
Calhoun  L.  &  B.  Ass'n.  9  Rich.  Eq.  16;< ;  Cleveland  v.  Boerum,  27 
Ba^-b.  253  ;  and  see  Carroll  r.  Kershner,  47  Md.  270. 

I  28.  "^ho  are  necessary  or  proper  parties  in  "bills  to 
redeem  and  for  partition.  —  It  may  be  generally  stated  that 
to  a  bill  to  redeem  all  persons  whose  interests  or  rights  would 
be  affected  by  the  decree  should  be  made  parties ;  ^  but  one 
who  purchases  the  equity  of  redemption  at  execution  sale 
need  not  make  the  mortgagor  a  party  to  his  suit  to  redeem.^ 
When  a  debtor  files  a  bill  against  the  asignee  of  his  note  to  be 
relieved  of  usury,  and  to  redeem  property  apparently  sold  but 
in  fact  pledged  for  the  debt,  the  assignor  is  properly  made  a 
party.^    "When  a  mortgage  has  been  absolutely  assigned  the 


85  XECESSAEY  A>1)   PROPER  PARTIES.  J  40 

last  assi^ee  is  the  only  necessary  party  defendant;  whether 
an  iutjim-diate  assignor  has  received  I'ent  or  not  is  imma- 
terial.^ A  widow  entitled  to  dower  in  the  mortgaged  lands 
who  joined  in  the  execution  of  the  mortgage  mav,  in  a  hill  to 
redeem,  prop  rly  make  the  purchaser  of  the  eqiiity  of  redemx>- 
tion  a  party  defendant,  he  having  purchased  from  the  hushand 
alone  suhsequently  to  the  execution  of  the  mortgage.^  A.,  as 
assignee  of  a  mortgage,  also  held  a  second  mortgage,  and  was 
a  joint  assignee  with  B.  of  a  third  mortgage  upon  part  of  the 
same  land.  In  a  suit  hy  him  against  Z.,  a  subsequent  mort- 
gagee of  the  whole  premises,  to  redeem,  B.  was  held  not  to  be 
a  necessary  party.**  The  administrator  of  a  deceased  mort- 
gagee is  a  necessary  pirtyJ  So  when  chattels  specifically 
bequeathed  are  mortgaged  by  the  executor  he  must  be  made  a 
party  to  a  bill  to  redeem.^  So  also  the  heirs  of  the  deceased 
mortgagor^  aud  mortgagee i"  are  necessary  parties.  All  the 
mortgagees  in  whom  is  vested  the  legal  title  must  be  made 
parties,  and  if  the  mortgagee  is  only  trustee  for  another  the 
cestui  que  trust  should  be  joined.!^  To  a  bill  for  partition  all 
p  rsons  interested  in  the  property  should  bo  before  the  court.'^ 
Each  par:y  to  an  action  of  this  character  is  an  actor,  and  it  is 
immaterial  whether  ho  appears  upon  the  face  of  the  record  as 
plaintiff  or  defendant. ^-^  A  lunatic  must  be  made  a  party  to  a 
bill  by  his  committee  for  partition  of  his  lands. ^^  To  a  suit  to 
establish  complainant's  rights  and  for  partition,  one  to  whom 
complainant's  vendor  while  a  lunatic  sold  the  same  land  need 
not  be  made  a  party.  ^^  C,  having  divested  himself  of  all  title 
to  lands  to  two  persons,  is  not  a  necessary  party  to  a  bill  by  one 
of  the  vendees  against  his  co-vendee  for  a  division  of  the 
premises.  1*^  A  wife  whose  husband  has  an  interest  in  lauds 
should  be  a  party  to  a  bill  for  partition  in  order  to  bar  her 
right  to  dower  ^'  or  claim  of  homestead ;  i*^  and  so  generally, 
although  it  is  not  necessary  still  it  is  advisable  to  make  those 
persons  parties  who  are  entitled  to  dower  in  the  premises  which 
has  not  been  admeasured,  and  which  extends  to  the  whole  of  the 
premises  of  which  partition  is  sought, ^^  not  only  life  tenants 
but  reversioners  should  be  made  parties. ^^  The  administrator 
Parties  — 8 


§  28  a        NECESSAKY  AND  PROPEK  PARTIES.  8G 

of  a  deceased  co-tenant,  however,  is  not  a  necessary  party.^^ 
When  a  suit  is  brought  by  an  heir  all  the  co-heirs  must  be 
joiner!; 22  mere  occupants  of  the  land,  however,  even  though 
claiming  through  the  heirs,  need  not  be  joined, ^^  nor  are  en- 
cumbrancers proper  parties. ^-^ 

1  Supra,  ?  38 ;  Beach  v.  Shaw,  C7  111.  19. 

2  Thorpe  V.  Rieks,  1  Dcv.  &  B.  Eq.  63. 

3  Woodward  v.  Fitzpatrick,  9  Dana,  118. 

4  Lennoii  v.  Porter.  2  Gray,  475 ;  see  Webber  v.  Taylor,  5  Jones 
Eq.  37. 

5  McCabe  v.  Bellows,  J  Allen,  260. 

6  Piatt  V.  Squire,  12  Met.  499. 

7  Suavely  v.  Pickle,  29  Gratt.  42  ;  Guthrie  v.  Sorrel! ,  6  Ired.  Eq.  13. 

8  Burkhead  v.  Colson,  2  Dev.  &  B.  Eq.  78. 

9  Smith  V.  Murphy,  58.Ala.  634  ;  Sutherland  v.  Rose,  47  Barb.  151. 

10  Suavely  v.  Pickle,  29  Gratt.  42. 

11  Woodward  v.  Wood,  19  Ala.  215;  compare  Woodson  v.  Perkins, 
5  Gratt.  353;  Smith  v.  Sheldon,  65  111.  222;  "Williams  v.  Howard,  3 
Murph.  77. 

12  Kesler  v.  Stark,  19  111.  323;  Lancaster  v.  Seay,  6  Rich.  Eq.  Ill ; 
Barhaus  v.  Barhaus,  2  Barb.  Ch.  451 ;  Sutter  v.  Sau  Francisco,  C6  Cal. 
114. 

13  Senter  v.  Do  Bernal,  38  Cal.  G-12. 

14  Gorham  v.  Gorham,  3  Barb.  Ch.  40. 

15  Calias  v.  Woodson,  2  Dana,  453. 

16  Guun  V.  Brantley,  21  Ala.  644. 

17  Greiner  v.  Kleni,  28  Mich,  12 ;  contra,  Lee  v.  Lindell,  22  Mo.  203. 

18  De  Uprey  v.  Do  Uprey,  27  Cal.  332. 

19  Tanner  v.  Niles,  1  Barb.  563 ;  Haulenbeck  v.  Cronkright,  23  ]Sr.  J. 
Eq.  409. 

20  Bell  ?j.  Adams,  81  N.  C.  121 ;  and  compare  Gates  ■?'.  Salmon,  ;i.5 
Cal.  586. 

21  Foster  v.  Newton,  46  Miss.  662 ;  Spoer  v.  Speer,  14  N.  J.  Eq.  220 ; 
Boutte  V.  Boutte,  30  La.  An.  182. 

22  Boutte  V.  Boutte,  30  La.  An.  182. 

23  Pleak  v.  Chambers,  7  Mon.  B.  570, 

24  Speer  v.  Speer,  14  N.  J.  Eq.  251  ;  Ebcrts  v.  Fisher,  44  Mich,  ir^); 
Wotton  V.  Copeland,  7  Johns.  Ch.  140. 

^  28  a.  Injunction. — It  is  a  general  rule  that  an  injunc- 
tion will  not  be  granted  against  a  person  not  a  party  to  the 
suit; 25  but  a  State  which  has  no  direct  interest  in  the  de- 
cree to  be  rendered  is  not  a  proper  party.^"  When  parties 
arc  numerous,  as  in  case  of  injunctions  to  restrain  the  collec- 


87  NECESSAEY  A^D  PROPER  PARTIES.        §  28  a 

tion  of  a  tax  to  pay  certain  bonds,  the  bondliolders  are  not 
indispensable,  but  are  necessary  parties. ^^  When  the  owner  of 
school  lands  seeks  to  restrain  the  collection  of,  and  to  have  a 
tax  loviod  upon  such  lands  declared  void,  the  county  is  a 
propir  party  to  the  proceeding. 2**  A  city  is  a  ncccssaiy  party 
to  a  bill  si-eking  to  restrain  the  collection  of  city  assessments 
for  the  payment  for  sidewalks  made  in  front  of  lots  within  its 
limits;-^  also  to  a  bill  to  restrain  illegal  p:iymcnt  of  city 
funds ;  ^'-^  so  to  a  bill  to  restrain  an  illegal  use  of  a  public  high- 
way.^^  To  a  bill  which  seeks  to  restrain  a  city  from  paying  a 
fire  marshal  for  services,  such  officer  must  be  joined  i^''^  so  the 
election  officers  arc  necessary  parties  to  a  suit  to  restrain  a  city 
from  paying  the  expenses  of  a  municipal  election.^-^  A  school 
district  is  a  necessary  party  to  a  suit  to  restrain  the  collection 
of  a  tax  l:-vied  for  the  purpose  of  paying  interest  on  a  school 
district  bond,  and  to  create  a  fund  for  the  redemption  of  the 
boud.^*  In  an  action  against  the  authorities  of  a  city  to 
restrain  them  from  the  commission  of  an  illegal  or  fraudu- 
lent act,  —  i.  e.,  giving  contract  to  one  not  tlie  lowest  bidder, — 
neither  the  contractor  nor  bidders  are  proper  parties. ^^  When 
the  legislature  provided  by  law  for  the  payment  of  the  pro- 
ceeds of  the  sale  of  certain  lands  to  certain  railroad  companies 
for  certain  purposes,  such  companies  must  be  parties  to  a  suit 
to  restrain  such  payment.^*^  When  a  corporation  is  sought  to 
be  restrained  from  doing  business  in  a  manner  alleged  to  be  in 
excess  of  its  powers  and  in  violation  of  law,  it  must  be  a  i^arty 
to  the  proceeding.^^  When  the  owners  of  a  plank  road  abandon 
the  same  and  it  becomes  public  property,  the  county  judge  is 
the  proper  party  to  file  a  bill  to  restrain  such  owner  from 
impvcpsr  interference  with  the  same.^^  When  a  road  overseer 
proceeds  to  take  possession  of  private  lands  for  public  use 
without  proceeding  in  the  manner  provided  by  law,  although  he 
act^  under  the  order  of  the  county  court,  he  may  be  restrained 
from  so  proceeding,  and  the  county  court  should  be  a  party  to 
the  bill  for  the  injunction  ;^^  but  the  clerk  who  is  entitled  to 
costs  on  the  judgment  sought  to  be  enjoined  is  not  a  proper 
party  to  the  bill.-^^    The  clerk  of  the  board  of  supervisors 


§  28  a        KECESSAEY  AXD  PROPER  PARTIES.  88 

being  the  person  autliorized  by  law  to  execute  tax  deeds  is  a 
necessary"  party  to  a  bill  seeking  to  enjoin  the  execution  of  such 
deed  upon  a  void  tax  certificate.*^  A  sheriff  or  other  officer 
who  has  in  his  hands  an  execution  is  not,  as  a  rule,  a  proper 
party  to  o  bill  to  enjoin  the  judgment  upon  which  the  execu- 
tion was  issued ;  but  if  he  unlawfully  combine  with  the  judg- 
ment creditor  to  unnecessarily  harass  and  oppress  the  debtor 
he  may  be  joined. *2  "When  an  action  at  law  is  sought  to  be 
enjoined,  all  persons  who  have  an  interest  in  the  subject- 
matter,  and  who  will  be  naturally  affected  by  the  decree,  should 
be  made  parties.*^  One  who  is  jointly  liable  with  complainant 
upon  the  note  sought  to  be  enforced  should  be  a  party  to  a  bill 
to  restrain  its  collection.*'*  So  when  fraud  in  obtaining  the 
judgment  is  charged  all  the  participants  should  be  ma  le  parties 
to  the  proceedings  to  restrain  its  enforcement ;  *^  the  attorneys, 
however,  against  whom  no  fraud  is  charged  or  relief  sought 
should  not  be  joined.*''  The  wife  is  a  necessaiw  party  to  a  suit 
to  restrain  the  plaintiff  from  proceeding  in  an  action  at  law 
against  the  husband  and  wife.*^  "When  the  wife  seeks  to 
restrain  the  creditors  from  selling  her  separate  property  for 
the  debts  of  her  husband,  she  should  sue  by  her  next  friend 
and  her  husband  should  be  a  party  defendant.*^  When  it  is 
sought  to  restrain  a  widow  from  conveying  her  right  of  dower 
she  must  be  made  a  party  to  the  proceedings ;  that  she  is  a 
party  as  administratrix  is  not  sufficient.*^  "Where  a  suit  is 
brought  to  enjoin  a  sale  about  to  be  made  under  a  trust  deed, 
the  trustor  being  directly  interested  should  be  made  a  party. &" 
When  the  trustee  holds  for  the  benefit  of  creditors,  and  suit  is 
brought  to  restrain  him  from  selling  the  trust  property  for 
their  benefit,  the  creditors  should  be  made  parties.^i  One 
member  of  a  firm  having  sold  a  copy  of  an  atlas  upon  which 
the  firm  claimed  a  copyi-ight,  in  an  action  to  enjoin  the  publi- 
cation of  such  copy  all  the  members  of  the  firm  must  be  made 
parties. S2  t^^^  exception  to  the  general  rule  that  the  rights  of 
a  person  will  not  be  determined  in  a  suit  to  which  he  is  not  a 
party  will  be  found  to  consist  of  cases  where  the  person  en- 
joined is  the  mere  solicitor,  or  agent,  or  tenant  of  a  party  to 


S9  XECESSAEY  AXD  PROPEE  PAETIES.         §  28  a 

the  suit  having  no  rights  involved  in  the  controversy,  or  where 
the  right  lias  already  been  determined.^' 

25  Chamberlain  v.  Leichter,  12  Minn.  27S ;  Fellows  v.  Fellows,  4 
Johns.  Ch.  25 ;  Waller  v.  Harris,  7  Paige,  167 ;  see  In  re  Hennup,  2 
Paige,  319  ;  New  York  v.  Connecticut,  4  Dall.  6. 

26  Cent.  Ry.  Co.  v.  The  M.  &  C.  of  Macon,  43  Ga.  &42. 

27  Rj-an  r.  Lynch,  68  111.  164;  Hutchinson  v.  Burr,  12  Cal.  103; 
Board  v.  T.  &,  P.  R.  W.  Co.  46  Tex.  323;  but  see  Leitch  v.  Wentworth, 
71  1:1.  147. 

23  LeflFerts  v.  Board  of  Supervisors,  21  Wis.  689;  compare  Milwau- 
kee I.  Co.  V.  Hubbard,  2.)  Wis.  55. 

29  Gilinore  v.  Fox,  10  Kan.  510. 

30  Lanirs  v.  King,  40  Conn.  312  ;  and  see  Burden  v.  Stein,  27  Ala.  112. 

31  Philadelphia  v.  Ry.  Co.  8  Phila.  648. 

32  Butcher  v.  Camden,  29  X.  J.  Eq.  478. 
.33  Bingham  v.  Campden,  29  N.  J.  Eq.  465. 
31  Hays  v.  Hill,  17  Kan.  361. 

35    People  i-.  Mayor  etc.  32  Barb.  37. 
30    Kansas  r.  Anderson,  5  Kan.  114. 

37    Price  v.  Minot.  107,  Mass.  63;  compare  Davis  v.  Trustees' First 
Cong.  Soc.  6-5  2s .  Y.  279. 
3.3    Craig  v.  The  People,  47  111.  49G. 

39  Carpenter  ?•.  Grisham,  59  Mo.  251;  but  see  Burpee  v.  Smith, 
Walk.  Ch.  ?29  ;  McNeill  i'.  McNeill,  36  Ala.  120. 

40  M'Gavock  v.  ElUott,  3  Yerg.  374. 

41  Siegel  V.  Supervisors.  26  Wis.  72. 

42  Allen  r.  Mechill.  14  Ohio,  454  ;  contra,  Burpee i-.  Smith,  Walk.  Ch. 
330;  compare  Fellows  v.  Fellows,  4  Johns.  Ch.  25;  Blanton  »•.  Hall.  2 
Heisk.  424  ;  fepottswood  v.  Higgenbotham,  6  Munf.  314. 

43  Atkins  v.  Billings,  71  lU.  597 ;  Berry  v.  Berry,  3  Mom.  265. 

44  Bailev  v.  Inglee,  2  Paige,  279  ;  Vanmeeter  v.  Williams,  1  Marsh. 
J.  J.  561 ;  Jameson  v.  Deshields,  3  Gratt.  11 ;  Jamison  v.  Maj-,  13  Ark. 
602 ;  and  see  generally  Wickliffe  v.  Lee,  4  Daua,  33. 

45  Hill  V.  Reifshider,  39  Md.  432. 

46  Keenan  v.  Miller,  2  Kelly,  32.5. 

47  Booth  V.  Albertson,  2  Barb.  Ch.  313. 

48  Kirkpatrick  v.  Buford,  21  Ark.  2?2. 

49  Pennington  v.  Hanby,  4  Munf.  140. 

50  Abrahms  v.  Vallbaum,  54  Tex.  227. 

51  Calwell  ?•.  Prindle.  11 W.  Va.  309  ;  compare  Sixth  Ward  Building 
Asso.  V.  Wilson,  41  Md.  509. 

52  Rees  v.  Peltzer,  75  111.  484. 

53  Schalk  v.  Schmidt,  14  N.  J.  Eq.  270;  see  Bradley  v.  Nortoti,  :i3 
Conn.  165. 


'6   29  WHO  MAY  SUE  AND  BE  SUED.  90 


CHAPTEE  IV. 

ALIENS,    XOX-RESIDENTS,    INDIANS,    TEUSTEES,    ASSIGNEES,    ETC. 

?  2'J.  Aliens,  non-resiclents,  and  Indians. 

§  30.  To  enforce  a  public  right. 

2  31.  Generally  in  actions  upon  contracts. 

g  32,  Trustees,  actions  by. 

?  S3.  Trustees,  actions  against. 

?  34.  Assignor  and  assignee,  actions  by. 

I  35.  Same  continued  —  Actions  upon  promissor j'  notes. 

§  36.  Contracts  under  seal,  bonds,  covenants,  etc. 

?  37.  Contracts  made  for  the  benefit  of  third  persons. 

§  33.  Generally  in  actions  for  torts. 

I  29.     Generally  aliens,   non-residents,  and  Indians.— A 

foreign  sovertign  may  maintain  an  action  at  law  or  in  equity 
in  either  State  or  federal  courts.^  Where  property  of  a  foreign 
government  is  for  the  time  being  vested  in  its  ambassador, 
who  is  by  such  government  authorized  to  maintain  an  action 
therefor  in  his  own  name,  he  may  maintain  an  action  in  our 
courts.'-^  An  alien  whose  rights  are  guaranteed  to  him  by  treaty 
and  who  is  merely  permitted  to  hold  property,  may  maintain 
an  action  for  its  recovery.^  In  absence  of  proof  that  an  alien 
has  become  a  citizen,  his  original  status  is  presumed  to  con- 
tinue.* He  has  no  rights  concerning  immovable  property' 
within  a  State  except  such  as  it  may  deem  proper  to  concede.^ 
Under  the  abandoned  and  captured  property  act,  the  right  of 
an  alien  to  sue  in  the  court  of  claims  of  the  United  States  de- 
ponded  upon  the  question  whether  or  not  such  aliens  were  citi- 
zens of  a  government  which  accorded  like  privileges  to  citizens 
of  the  United  States.''  A  foreign  judgment  creditor  who  has 
obtained  no  judgment  in  this  State,  and  has  no  attachment  or 
other  lien  upon  his  debtor's  lands  here,  cannot  maintain  a  suit  to 
subject  such  lands  to  the  payment  of  his  debt.'  Thepleaofalitn- 
ageought  to  contain  a  direct  averment  that  the  person  is  an  alien, 
that  he  was  born  out  of  the  allegience  of  the  State  and  within  the 


.*!  ALIEXS,    NOX-EESIDENTS.  ^   29 

allegieuce  of  a  foreign  state  ;^  it  should  aver  that  such  was  the 
character  and  status  of  the  person  when  the  suit  was  brought.** 
At  common  law  if  plaintiflfin  a  real  action  was  an  alien  enemy 
at  the  commencement  of  the  suit,  it  was  cause  for  abatement.^" 
So  if  the  disability  occurred  after  suit  brought,  it  was  cause  for 
dismissal  ;^i  but  now  that  fact  merely  suspends  the  right  of 
action.i"'^  Where  both  parties  to  a  conti-act  are  aliens,  it  may 
be  enforced  in  a  State  court. ^-^  The  rule  is  well  established 
:iiat  although  an  alien  enemy  cannot  sue  a  friendly  citizen  in  the 
courts  of  the  latter's  countiy,  yet  he  may  be  sued  in  such 
:ourts  ;  ^'  and  being  sued  he  has  the  right  to  employ  all  means 
and  appliances  of  defenses,  including  the  right  to  employ 
counsel  and  be  represented  by  them  therein. ^^  In  case  of  war 
between  indc pendent  powers,  an  abuse  of  beligerent  power 
"oill  not  be  inquired  into  by  the  courts  of  the  adverse  j)arty ; 
this  rule,  however,  does  not  apply  to  a  domestic  war  between 
the  people  of  the  same  nation. i*^  When  all  trade  and  traffic 
between  citizens  of  States  at  war  with  each  other  is  prohibited 
by  the  laws  of  one  of  such  States,  such  contracts  made  in  vio- 
lation thereof  cannot  be  enforced  in  its  courts. i'  This  rule, 
however,  has  no  application  to  conti'acts  made  prior  to  the  war 
by  citizens  of  such  beligerent  States;^**  to  bring  a  case  within 
the  rule  the  persons  must  at  the  time  the  contract  is  made  be 
under  the  dominion  of  different  and  opposing  flags. i**  An  alien 
who  is  sued  in  a  State  court  may,  by  complying  with  the  laws 
of  Congress,  remove  the  suit  to  the  federal  courts,  but  cannot 
claim  a  dismissal  of  the  suit  upon  the  ground  that  it  was  im- 
properly brought  in  the  State  court. 2"  In  Louisiana  a  citizen 
of  another  State,  although  he  has  a  dwelling  there,  is  an  ab- 
sentee within  the  meaning  of  the  statute,  and  may  be  repre- 
sented in  a  suit  brought  against  him  by  a  curator  ad  /(oc.21  If 
he  has  property  within  the  State  and  within  the  jurisdiction  of 
the  court,  he  may  be  brought  into  court  and  have  a  judgment 
in  rem  rendered  against  him  either  by  an  attachment  against 
the  property  or  by  appointing  a  curator  ad  hoc  for  him. 2-  In 
Massachusetts  prior  to  Statute  of  18C9,  ch.  463,  the  disability  of 
an  Indian  to  sue  in  his  own  name  for  a  tort  committed  upon 


§  29  "^HO  MAY  SUE   AND  BE  SUED.  92 

him  must  be  pleaded  in  abatement  before  answer. 2=<  In  Kan- 
sas held  in  a  partition  suit  that  the  fact  that  both  parties  were 
Shawnee  Indians,  did  not  forbid  to  the  court  jurisdiction  of  the 
parties  or  subject-matter.^*  In  Ehode  Island  it  was  held  an 
Indian  who  did  not  live  with  his  tribe  may  be  sued  under  the 
licvised  Statutes  upon  a  note,  although  it  was  given  under  a 
former  law  by  whicli  he  was  exempted  from  suit.^a  At  common 
law  a  person  civilly  dead  is  incapable  of  maintaining  an  action, 
the  disability  could  either  be  pleaded  in  abatement  or  in  bar. 
In  this  State  (Deleware),  the  rule  does  not  obtain  and  such 
person  may  sue  or  be  sued.26 

1  King  of  Prussia  i\  Knepper.  22  ilo.  557  ;  Mexico  v.  Arrangois,  1 
Peters  C.  C.  276  ;  Kiug  of  Spain  v.  Oliver,  2  Wash.  C.  C.  431. 

2  Peel  V.  Elliott,  7  Abb.  Pr.  437  ;  Xewman  v.  Wilson,  1  La.  An.  48. 

3  Den  V.  Brown,  7  X.  J.  L.  333;  and  see  De  Laviaga  r.  Williams, 
5  Sawy.  .574  ;  Kouche  i\  Williamson,  3  Ired.  145. 

4  Hanenstein  v.  Lynham,  100  U.  S.  484. 

5  Hanenstein  v.  Lynham,  100  V.  S.  484  ;  and  see  Scott  r.  Sandford, 
19  ITow.  399  ;  Heirn  v.  Bridault,  37  Miss.  221 ;  compare  Atkins  r.  Kron, 
5  Ired.  Eq.  207 ;  Stillman  v.  Dunklin,  48  Ala.  175. 

G    Brown  v.  L'nited  States,  5  Ct.  of  CI.  575. 

7  Davis  V.  Dean,  26  X.  J.  Eq.  436  ;  and  see  Tavvell  v.  Griggs,  3  Paige, 
207  ;  IMcCartney  v.  Bostwick,  32  X.  Y.  57. 

8  Coxe  V.  Gulick,  10  X^.  J.  L.  329. 
0    Elger  V.  Lovell,  1  Woolw.  110. 

10  Hutchinson  v.  Brock,  11  Mass.  123 :  Martin  v.  Woods,  9  Mass. 
o3. ;  and  see  McXair  i\  Toler,  21  Minn.  184. 

11  Howes  V.  Chester,  33  Ga.  90. 

12  Levine  v.  Taylor,  12  Mass.  9*  Hutchison  v.  Brock,  11  Mass.  123  ; 
C.iapelle  v.  Olnej*,  1  Sawy.  40i ;  Crutcher  v.  Hord.  4  Bush,  368; 
^Vhelan  v.  Cook,  29  Md.  7. 

13  Roberts  r.  Knights.  7  Allen,  450 ;  Wellborn  ?-.  Tlndell,  1  Mo.  215 ; 
Earrell  v.  Benjamin,  15  Mass.  ;i56. 

14  Ludlow  ?-.  Ramsey,  11  Wall.  589 ;  De  Jarnett  v.  De  Giversville, 
56  Mo.  444;  United  States  v.  1756  Shares  etc.  5  Blatchf.  2::;6:  Xixer  v. 
Sibley,  53  111.  73  ;  Harter  v.  Ely,  56  111.  183  ;  Seymour  >\  Bailey,  66  HI. 
2db ;  Dorsev  v.  Kvle,  30  Md.  519  ;  Dorsey  v.  Dorsev,  30 Md.  527 ;  Dorsey 
V.  Thompson,  37  Md.  38 ;  Smith  v.  Ins.  Co.  &1  Mo.  332 ;  and  see  Peerce 
V.  Clarskadon,  4  W.  Va.  236. 

15  McVeigh  v.  T.  S.  11  Wall.  267  ;  Falls  v.  Dickey,  5  Jones  Eq.  359 ; 
McXair  v.  Foler,  21  ilinn.  184  ;  Russ  v.  Mitchell,  11  Fla.  87. 

16  Christian  Co.  Ct.  v.  Rankin,  2  Duval,  503 ;  and  see  Little  v.  Bar- 
remo,  2  Cranch,  157. 

17  Webster  v.  Mahonev,  22  La.  An.  593 ;  Bowdica  v.  Heation,  22  La. 
An.  356 ;  Mansfield  v.  McLean,  22  La.  An.  216. 

13    Stiles  r.  Easley,  51  111.  276. 

19    Acklen  v.  Hickman,  60  Ala.  571. 


93  ALIENS,    XOX-REStDENTS.  §   30 

JO  Welve  V.  Duroc,  15  La.  An.  66. 

Jl  Morris  v.  Bieuveun,  30  La.  An.  878 ;  and  see  Hyde  r.  Marey,  22 
L;i.  An.  ••«;<. 

22  O'Hara  v.  Booth,  23  La.  An.  821. 

23  Jahaj'.  Belleg,  1^5  Mass.  211. 

24  Swartzel  v.  Rogers,  -i  Kau.  377. 

25  Stokes  v.  Rodman,  5  R.  I.  405. 

26  Cannon  v.  Windsor,  1  Houst.  144. 

§  30.  To  enforce  a  public  right.  —  When  a  matter  of  pub- 
;  :o  right  i:S  involved,  any  citizen  of  the  State  may  be  a  relator  in 
..n  application  for  a  mandamus  to  enforce  the  common  law  or 
an  act  of  the  legislature. i  When  a  private  right  is  sought  to 
he  enforced  the  person  intei'ested  must  be  the  relator ;  ^  the 
suit  should  be  prosecuted  in  the  name  of  the  sovereign  author- 
ity, and  not  in  the  name  of  the  person  beneficially  interested.^ 
Xo  one  can  maintain  an  action  unless  he  has  some  interest  in 
The  matter  in  controversy;  if  the  iaterest  is  joint  then  all 
-iiould  unite  as  plain tifis.     If  one  who  should  be  made  plaintiff 

annot  be  obtained  he  should  be  made  a  defendant,  and  the 
reason  therefor  stated  in  the  complaint.  If  the  interest  is  one 
general  or  common  to  many  persons,  or  parties  are  numerous, 

nd  it  is  impracticable  to  bring  all  before  the  court,  one  or 
i-iore  may  sue  or  defend  for  the  benefit  of  the  whole  ;*  but  one 
:  lember  of  a  class  having  a  common  interest  in  the  subject- 
:  latter  cannot  maintain  a  suit  in  his  own  name,  and  for  his 
individual  benefit.^    So  if  persons  are  very  numerous,  and  have 

•r  may  have  separate  and  distinct  interests,  yet  the  right  be 

•mmon  to  all,  one  or  more  may  sue  for  the  common  benefit.^ 
.Vhen  a  bill  is  brought  by  one  person  on  behalf  of  himself  and 
all  others  who  are  entitled,  but  no  other  person  actually  comes  in 
tij  prosectite  with  him,  the  bill  cannot  be  maintained  unless  satis- 
factory evidence  is  offered  of  a  right  in  him  to  equitable  relief.^ 
When  money  is  to  be  raised  by  taxation  or  expended  from  the 
public  treasury,  a  citizen  and  tax  payer  has  such  an  interest  as 
will  enable  him  to  proceed  on  behalf  of  himself  and  others  hav- 
ing like  interests  in  equity  to  test  the  validity  of  the  law  which 
proposed  the  assessment  or  expendittire.^  In  Wisconsin  it  was 
held  that  a  suit  could  not  be  maintained  by  one  tax  payer,  on 


§   30  WHO  M.\Y  SUE  A>-D  BE  SUED.  94 

behalf  of  himself  and  others,  to  restrain  a  county  treasurer 
from  proceeding  to  advertise  and  sell  a  large  body  of  rtal 
estate  situated  in  the  school  district,  and  belonging  to  them  in 
severalty,  for  the  purpose  of  collecting  a  delinquent  tax  assessed 
upon  the  property  of  the  district,  to  pay  certain  judgments 
alleged  to  have  been  obtained  against  the  school  district  upon 
illegal  and  forged  school  orders.^  It  is  an  ancient  rule  of  law 
that  no  action  lies  for  a  public  nuisance,  but  by  indictment 
only.''"  The  only  exception  to  this  rule  is  where  the  private 
person  suffers  some  extraordinary  damage  distinct  from  that 
suffered  by  the  public  at  large. ^^  The  better  opinion  now  seems 
to  be  that  where  two  or  more  persons  have  separate  and  dis- 
tinct tenements  which  are  injured  or  rendered  uninhabitable 
by  a  common  nuisance,  or  which  are  rendered  less  valuable  by 
a  private  nuisance  which  is  a  common  injtrry  to  the  respective 
tenements  of  each  of  the  complainants,  they  may  join  in  a  suit 
to  restrain  the  same.^^  One  who  erects  a  nuisance  upon  his 
premises,  and  then  conveys  the  same  with  covenants  of  war- 
ranty, is  liable  for  its  continuance.^* 

1  People  V.  Collins,  19  Wend.  5S  ;  generally  Chumasero  •?'.  Potts,  2 
Mont.  2^  ;  State  v.  Marston,  6  Kan.  532  ;  State  v.  Bailev,7  Iowa.  397  ; 
Crowell  V.  Lambert.  10  Minn.  375  ;  Co.  of  Pike  v.  State,  11  111.  207  ; 
Glencoe  v.  The  People,  78  111.  390  ;  Napier  v.  Poe.  42  Ga.  178  ;  Ferry  v. 
Williams,  41  X.  Y.  333;  but  see  Sanger  v.  Co.  Commrs.  25  Me.  296  ; 
Heffr.er  v.  Commonw.  28  Pa.  St.  112  ;  Wellington  v.  Pot'n'rs,  16  Pick. 
105  ;  People  v.  Regents  Univ.  of  Mich.  4  Mich.  102  ;  Miller  r.  Grandy, 
13  Mich.  550. 

2  Co.  of  Pike  v.  State,  11  111.  208  ;  People  v.  Collins,  19  Wend.  58  ; 
State  V.  Haben,  22  Wis.  667  ;  compare  State  v.  Cincinnati,  19  Ohio,  188. 

3  State  V.  Commrs.  Perry  Co.  5  Ohio  St.  502  ;  Chance  v.  Temple,  1 
Iowa,  192  ;  Brower  v.  O'Brien,  2  Ind.  431  ;  contra,  State  v.  Marston,  6 
Kan.  .532  ;  People  v.  Pacheco,  29  Cal.  213;  and  see  People  v.  Supervisors, 
50  Cal.  561. 

4  Terrv  v.  Calnan,  4  S.  C.  515  ;  Shoemaker  v.  Commrs.  36  Ind.  181 ; 
same  effect,  B.  &  L.  R.  Co,  v.  Metcalfe,  4  Met.  (Ky.)  2W  ;  Blatchford 
T.  Ross,  51  Barb.  43  ;  Smith  v.  Wood,  10  N.  Y.  Leg.  Obs.  12  ;  Smith  v. 
Swormstedt,  16  How.  c02  ;  see  also  Ayres  v.  Carver.  17  How.  592  ; 
Bacon  ?■.  Robertson,  18  How.  48^  ;  compare  Lowry  v.  Francis.  2  Yerg. 
536 ;  Reynolds  v.  Bank  of  Va.  6  Gratt.  178 ;  Chapman  v.  Banker,  128 
Mass.  479. 

5  Smith  r.  Wood,  10  N.  Y.  Leg.  Obs.  12  ;  Fraser  v.  Freelon,  53  Cal. 
647  ;  Osborne  v.  Brooklyn  Cv.  R.  Co.  5  Blatchf.  368  ;  Currier  v.  West 
Side  E.  P.  R.  Co.  6  Blatchf.  404  ;  Lansing  /•.  Smith.  8  Cowen,  152  ;  Davis 
V.  Mayor  etc.  New  York,  14  N.  Y.  514  ;  Packard  v.  Board,  2  Colo.  350. 

6  Smith  V.  Swormstedt,  16  How.  302  ;  B.  &  L.  R.  Co.  r.  Metcalfe, 
4  Met.  (Ky.)  204  ;  compare  Reid  v.  The  Evergreens,  21  How.  Pr.  319  ; 


3  ALIENS,    KOy-EESIDEXT3.  ^31 

(;  inierz'.  Wright,  21  How.  Pr.  147;  McCaleb  v.  C'ric^.ficl  1,  5  Ileisk. 

7    Hubb-11  V.  Warren,  8  Allen,  176. 

S  Page  r.  Allen,  53  Pa.  .St.  :M5;  Sharpless  ?-.  Mayor  of  Phila,  21 
Pa.  St.  176 ;  Mott  v.  Pa.  R.  Co.  30  Pa.  St.  20  ;  0.sburn  v.  Stanley,  o  W. 
\a.  88  ;  Mayor  v.  Gill,  31  Md.  394  ;  New  London  v.  Bramard.  22  Conn. 
'5;  Webster  v.  Hurvvinton,  :32  Conn.  i:i6  ;  Collins  v.  Kipl,-v,  8  Iowa, 
in  ;  Newmayer  ?'.  M.  <fc  M.  R.  Co.  52  Mo.  83  ;  Normand  >•.  Cloe,  8  Neb. 
1-;  Merrill  v.  Plaiufield,  45  N.  H.  VH;  contra,  Doolitile  v.  Super- 
visors, 18  N.  Y.  157;  Roosevelt  v.  Draper^  2."^  N.  Y.  32 i;  Deniarest  v. 
Wickham,  63  N.  Y.  323  :  compare  Denton  v.  Jackson,  2  Johns.  Ch.  -^5. 
Cad}-  V.  CoDger,  19  N.  Y.  261  ;  compare  Packard  ?-.  Board  C  o.  Commrp. 
2  Colo.  3.50;  People  v.  Commrs.  4  Neb.  161;  Mathenv  ?•.  Golden,  5 
Ohio  St.  ;i64  ;  Ciiicinnati  St.  R.  C.  v.  Smith,  2j  Ohio  St.";303  ;  Thurston 
V.  Elmira,  10  Abb.  Pr.  N.  8.  120;  Bouton  v.  Brooklyn,  15  Barb.  392; 
Barnes  v.  Belvit,  19  Wis.  94  ;  Palmer  v.  Rice,  12  Mich.  418. 

9  Newcomb  v.  Horton,  18  Wis.  58S ;  compare  Weir  i'.  Day,  35 
Ohio  St.  14.5  ;  Chase  v.  Stephenson,  71  II!.  384. 

10  Shed  r.  Hawthorne,  3  Neb,  184;  Morris  &  Essex  R.  Co.  v. 
Pruden,  20  N.  J.  Eq.  536. 

11  .Shed  r.  Hawthorne,  3  Neb.  185;  generally  see  Hinchman  v. 
Paterson  H.  R.  Co.  17  N.  J.  Eq.  82 ;  Morris  &  Essex  R.  Co.  v.  Prudeu, 
20  N.  J.  'Eq.oSb  ;  Straits  Turnpike  Co.  v.  Hoadley  Co.  11  Conn.  466; 
Bigelovv-  V.  Hartford  Bridge,  14  Conn.  577  ;  Irwin  v.  Dixion,!)  now.  27 ; 
Clark  r.  Peekham,  9  R.  I.  468 ;  Thornton  v.  Smith,  10  R.  I.  477 ;  Petti.s 
V.  Johnson,  58  Ind.  149  ;  Bruning  v.  N.  O.  Canal,  12  La.  An.  543  ;  Bov- 
kin  ?•.  Shaffer,  13 La.  An.  1.30  ;  Dudlev  v.  Tilton,  14  La.  An.  28-1 ;  Hickok 
r.  Hine,  23  Ohio  St.  523  ;  Sargent  v.  O.  cfe  Miss.  R.  Co.  1  Handy,  5) ; 
compare  Blanc  v.  Klumpke,  29  Cal.  159 ;  compare  also  Prince  v. 
McCoy,  40  Iowa,  536 ;  Clark  v.  Wellett,  35  Cal.  541. 

12  Murray  v.  Hay,  1  Barb.  Ch.  60 ;  Belknap  v.  Trimble,  3  Paige, 
GOO  ;  Card-'gan  ?•.  Brown,  120  Mass.  493  ;  Watertown  v.  Cowen,4  Paige, 
515  ;  Emery  v.  Erskine,  66  Barb.  10  ;  Robinson  v.  Baugh.  31  Mich.  2j1  ; 
Mlddletown  ?•.  F.  R.  B.  Co.  27  Mich.  5:J4  ;  Grant  v.  Schmidt.  22  Minn. 
2 ;  Bardes  v.  Racine,  4  Wis.  466 ;  Williams  v.  Smith.  22  Wis.  GOO ;  com- 
pare Penuoyer  v.  Allen.  50  Wis.  310;  Schultz  v.  Winter,  7  Nev.  133; 
Hinchman  v.  Paterson  H.  R.  Co.  17  N.  J.  Eq.  82. 

13  Waggoner  ?'.  Jermaine,  3  Denio,  312 ;  and  see  Lohmiller  v.  Ind. 
Ford  W.  P.  Co.  51  Wis.  688;  compare  Gradv  v.  Wolsuer.  46  Ala.  382 ; 
Eastman  r.  St.  Anthony  Falls  "W.  P.  Co.  12  Minn.  142  :  Webb  r.  R.  W. 
&  O.  R.  Co.  49  N.  Y.  434. 

§  £1.  In  actions  upon  contracts.  —It  is  a  general  rule  that 
all  actions  upon  contract,  whetlier  express  or  implied,  by  parol, 
under  seal,  or  of  record,  must  be  brought  in  the  name  of  the 
parties  legally  interested,^  the  person  with  whom  the  contract 
Avas  made. 2  The  legal  interest  in  a  contract  is  in  the  ptroon  to 
whom  the  promise  is  made  and  from  -whom  the  corsideration 
passes,  and  consequently  he  is  the  person  who  must  bring  the 
action.^  In  California  and  some  other  States  eveiy  action  with 
certain  specified  exceptions  must  be  prosecuted  in  the  name  of 
the  real  party  in  interest.*    The  woi-d   "prosecuted,"  when 


§  31  ■VVHO  MAY  SUE  AND  BE   SUED.  96 

taken  in  connection  with  sectioQ  thirty-seven  of  the  Oregon 
Civil  Code,  must  he  taken  to  mean  that  all  actions  must  he 
commenced  in  the  name  of  the  real  party  in  interest.^  One  is 
the  real  party  in  interest  under  the  Code  if  he  has  a  valid 
transfer  as  against  the  assignor,  and  holds  the  legal  title  to  the 
demand,''  The  rule  is  nothing  more  than  a  statutory  enactment 
of  the  rule  that  has  always  prevailed  in  courts  of  equity.'^  In 
equity  a  person  heneficially  interested  in  a  contract  may  main- 
tain a  suit  in  his  own  name  to  enforce  his  rights.^  The  term 
"  trustee  of  an  express  trust,"  as  used  in  the  Code,  requiring 
all  actions  to  he  prosecuted  in  the  name  of  the  real  party  in 
interest  except  '  =  the  trustee  of  an  express  trust  ....  may 
prosecute,"  ....  was  not  intended  to  limit  the  meaning  of 
the  term  to  "  a  person  with  whom  or  in  whose  name  a  contract 
shall  he  made  for  the  benefit  of  another,"  but  to  include  that 
class  within  the  general  term.^  In  order  to  maintain  an  action 
plaintiff  must  have  a  real  and  subsisting  interest  at  the  time 
of  the  commencement  of  the  suit.^"  An  interest  entirely  con- 
tingent and  uncertain,  that  may  never  have  an  actual  existence 
—  a  bare  possibility  —  is  not  sufficient.  ^^  Where  a  suit  is  com- 
menced upon  an  instrument  by  one  not  a  party  to  it,  his  inter- 
est should  be  affirmatively  shown  by  proper  allegations  in  the 
petition.  12  The  rule  requiring  the  real  party  in  interest  to  sue 
should  be  limited  to  those  cases  in  which  the  real  party  in 
interest  possesses  the  entire  cause  of  action,  the  original  owner 
of  the  cause  of  action  cannot,  by  parting  with  a  portion  of  his 
interest  in  it,  give  a  right  of  action  to  his  assignee  either  at 
common  law  or  by  the  provisions  of  the  Code ;  '^  if  the  assign- 
ment be  made  with  the  knowledge  and  consent  of  the  debtor, 
the  assignee  may  recover  in  his  own  name ;  ^*  but  if  the  assign- 
ment be  made  without  the  knowledge  or  consent  of  the  debtor, 
the  assignee,  although  he  cannot  recover  at  law,  may  proceed 
in  equity  by  making  all  persons  in  interest  parties  to  the  suit.^^  , 
Where  there  is  a  joint  interest  or  joint  cause  of  action  all  per- 
sons interested  must  join  in  an  action  to  recover  it,  but  where 
a  severance  is  made  by  the  debtor  by  paying  one  his  proportion 
of  the  claim,  the  others  may  bring  separate  actions  to  recover 


97  AT.ir.XS,   yOX-BESEDESTS.  §  31 

icir  interest. '^    A  person  -who  is  to  receive  a  part  of  the  profits 

a  business  either  in  whole  or  as  part  pay  for  his  services  may 

aintaiu  a  bill  in  equity  for  an  account  of  the  profits.^'    So  in 

|uity  a  person  may  maintain  a  suit  upon  a  contract  to  which 

Iio  is  a  party  both  as  promisor  and  promisee. i** 

1  Commonwealth  v.  Hughes,  8  Mon.  B.  400  ;  Kountz  v.  Holthouse, 
'  Pa.  St.  l-i7 ;  Phillips  v.  Pennywit,  1  Ark.  61 ;  Jones  v.  Sims,  6  Port. 

S  Shotwell  V.  Gilkey,  31  Ala.  727;  Anderson  f.  Williams,  2  Cush. 

i ;  Hathcock  v.  Owen,  44  Miss.  802  ;  Larned  v.  Carpenter.  65  111.  544 ; 
C  ane  v.  Fisher,  y  La.  An.  74  ;  Kenuistoa  v.  Ham,  2D  X.  H.  507  ;  Gov. 
i  Arkansas  v.  Ball,  Hemp.  545. 

2  Sisson  V.  Cleveland,  14  Mich.  496  ;  Jamison  v.  Jarrett,  4  Ind.  1S8  ; 
K  -nnison  v.  Ham,  2)  X.  H.  507  ;  Keane  v.  FLsher,  9  La.  An.  74  :  Cobb 

.  The  I.  C.  Rv.  Co.  ;iS  Iowa,  61G;  Corbett  v.  Schumacksr,  S3  III.  405; 
'\'  ed  V.  .S.  &  S.  Rv.  Co.  19  Wend.  5:17;  .see  Abbott  v.  Gregory,  .39  Mich. 
"    :  Albanv  Ex.  Bank  v.  Sage,  6  Hill,  56:3 ;  State  v.  Rhoades,  7  Nev. 

.  ' ;  Sumner  v.  Sleeth,  87  lU.  502 ;  Ryer  v.  Stockwell,  14  Cal.  135. 

3  Hall  V.  Huntoon.  17  Vt.  251 ;  Fugnre  v.  Mut.  Soc.  of  St.  Jos.  46 
:.  36);  Gardner  v.  Armstrong,  31  Mo.  53S  ;  Exchange  Bank:  v.  Rice, 
7  Mass.  41 ;  see  Treat  v.  Stanton,  14  Conn.  451. 

4  Wiggins  v.  McDonald,  18  Cal.  127;  Weaver  v.  Trustees  etc.  28 
Ind.  113;  Steeple  v.  Downing,  60  Ind.  4SS;  Freeman  v.  Falconer,  45 
X.  Y.  Supr.  Ct.  384 ;  Robbins  r.  Deverill,  20  Wis.  156 ;  Hicklia  v.  Xeb. 
Cy.  XatT  Bank,  8  Xeb.  463. 

5  Elliott  V.  Teal,  5  Sawy.  190. 

6  Freeman  v.  Falconer,  45  X.  T.  Supr.  Ct.  SS4. 

7  Grinnell  v.  Schmidt,  2  Sand.  707. 

8  Burlew  ?•.  Hillinan.  16  X.  J.  Eq.  25;  Frye  v.  Banlc  of  Illinois,  5 
Gilm.  :i37;  Dixon  v.  Buell,  21  111.  204 ;  compaVe  Moore  v.  Trustees,  19 
111.  86  ;  Suydam  v.  Martin,  Wright,  38-5. 

9  Weaver  v.  Trustees  etc.  28  Ind.  120;  also  comnaro  Smith  v. 
Smith,  5  Bush,  6:J2;  Robbins  v.  Deverill,  20  Wis.  157;  Gri:inGll  t\ 
Schmidt.  2  Sand.  710 ;  Considerant  v.  Brisbane,  22  X.  Y.  39"^ ;  Stillwell 
V.  Hurlburt,  18  X.  Y.  .374 ;  X'ewport,  v.  Taylor,  16  Mon.  B.  731 ;  Hirsh- 
filder  r.  Mitchell,  54  Ala.  419. 

10  Dugas  V.  Truxillo,  15  La.  An.  116 ;  Leberman  v.  X.  O.  Fla.  <fe  Hav. 
Stp.  Co.  28  La.  An.  412 ;  Winter  r.  City  of  Xev«-  Orleans,  26  La.  Au. 
310. 

11  Keene's  Appeal,  GO  Pa.  St.  510. 

12  Hicklin  v.  Xeb.  Cy.  XatT  Bank,  8  Xeb.  -tSo. 

13  Cable  v.  St.  Louis  M.  Ry.  &  D.  Co.  21  Mo.  i:» ;  and  .see  Beck  v. 
Devereaux,  9  X'eb.  Ill;  Smith  v.  Jones,  15  Johns.  227;  Willard  v. 
Sherry,  16  Johns.  121;  Leese  v.  Sherwood,  21  Cal.  164;  Korviter 
V.  Porter,  2:3  Cal.  386. 

14  Grain  v.  Aldrich,  38  Cal.  520. 

15  Grain  v.  Aldrich.  3S  Cal.  o'JO ;  and  sec  The  People r.  Comptroller, 
77  X.  Y.  4S  ;  Field  v.  The  Mavor  etc.  6  X.  Y.  185 ;  Pope  r.  lli.tii,  14  Cal. 
406  ;■  (Proves  v.  Ruby,  24  Ind.  418. 

16  Beach  r.  Ilotchkiss,  2  Conn.  SJ9. 

17  Bentley  v.  Harris,  10  R.  I.  4"::5 ;  Ilargrave  v.  Cu:nxiv.  i.-  X.  J.  Kq. 
234. 

P.\RTrE.S--J) 


§  32  WHO  MAY   SUE  AND  BE  SUED.  98 

18    Batchelder  v.  Wendell.  26  N.  H.  213;  generally  Bnrley  v.  Har- 
ris, 8  N.  H.  237;  Cason  v.  Wallace,  4  Bush,  38U;  Cecil  v.  Luuglilin,  4 


g  32.  Trustees,  actions  by.  — A  person  witli  whom  or  in 
whose  name  a  contract  is  made  for  the  benefit  of  another  is  a 
trustee  of  an  express  trust,i  and  an  action  upon  contract  may 
be  maintained  in  his  name  alone; 2  buc  he  is  not  compelled  to 
bring  the  action,  it  may  be  maintained  in  the  name  of  the 
cestui  que  trusL^  One  who  holds  a  note  as  trustee  of  an  express 
trust  may  sue  thereon  in  his  own  name  alone ;  *  thus  when  a 
note  is  transferred  as  "collateral"  to  secure  a  debt  due  the 
transferree.5  So  a  mere  transfer  without  consideration  for  the 
benefit  of  the  assignor  creates  "an  agency  to  collect,"  and  suit 
may  be  prosecuted  in  the  name  of  the  assignee.^  The  pur- 
chaser of  a  non-negotiable  chose  in  action  from  a  trustee  in 
insolvency  may  sue  upon  it  in  the  name  of  the  trustee.'  A 
trustee  who  has  been  vested  with  full  control  over  trust  funds 
may  maintain  an  action  to  recover  part  of  the  funds  which 
were  pledged  by  a  former  trustee  to  secure  a  private  debt  wilh^ 
out  joining  the  cestui  que  trust  with  him  in  the  action  ;S  but  a 
mere  nominal  (naked)  trustee  of  land  cannot  maintain  a  suit 
in  relation  thereto  without  joining  the  cestui^  When  a  trustee 
is  seeking  by  bill  in  equity  possession  merely  of  trust  funds, 
other  parties  who  have  nothing  -to  do  with  the  question  need 
not  be  brought  before  the  court.^"  So  if  the  cestui  que  inict 
were  entitled  to  the  possession  of  the  trust  property,  they  may 
maintain  an  action  against  a  stranger  to  recover  possession  cf 
the  property.^^  "When  an  action  is  brought  for  the  benefit  of 
an  unincorporated  association,  it  may  be  maintained  in  the 
name  of  its  tnistees  and  agents. ^'-^  When  the  legal  title  to  rcnl 
l^remises  is  in  trustees,  they  ai'e  the  proper  parties  to  maintain 
an  action  for  trespass  thereon. ^'^  If  the  cestui  que  trust  be  in  pos- 
session he  should  be  the  plaintiiT.i^  So  the  trustee  named  in  a 
trust  mortgage  may  maintain  an  action  to  foreclose  the  same, 
and  sell  the  property  without  joining  the  cestid  as  plaintiff  with 
him.^^  When  there  is  a  pressing  need  to  enforce  a  lien  for  the 
benefit  of  the  trusty  one  of  several  trustees  may  maintain  an 


action  therefor  if  his  co-trustees  refuse  to  join,  making  them 
parties  defendant ;  ^^  but  as  a  rulo  all  must  join  as  jjlaintiffs." 
A  tiiistee  may  also  maintain  a  hill  in  equity  to  redeem  a  mort- 
gage made  by  himself  of  the  trust  estate  \vithout  maldng  the 
cestui  p.yrty  to  the  bill.i^  A  trustee  under  a  will  cannot  main- 
tain a  bill  in  equity  (interpleader)  against  two  towns  to  deter- 
mine in  which  he  is  liable  to  be  taxed. ^^  When  an  estate  is 
conveyed  to  trustees  jointly,  the  right  of  survivor.-hij)  exists, 
and  suit  may  be  maintained  in  the  name  of  the  survivor. ^o 
Upon  the  death  of  a  trustee  pending  suit  the  action  may  be 
rovived  in  the  name  of  his  executor; 21  and  so  if  a  suit  has 
been  commenced  in  the  name  of  a,  trustee  who  subsequently  is 
removed,  it  may  proceed  in  the  name  of  the  new  trustee, ^"-^ 
formerly  the  action  abated. ^^  If  there  are  no  trustees,  or  they 
refuse  to  act,  a  petition  should  be  filed  for  the  appointment  of 
trustees  or  for  the  execution  of  the  trast  without  their  inter- 
vention.^^ An  action  may  be  maintained  in  the  name  of  the 
judge  of  probate  upon  a  bond  given  to  him  and  his  successors 
in  office,  although  the  office  is  abohshed  and  the  law  authoriz- 
ing it  repealed. 2a 

1  Harney  i'.  Dutoher,  15  Mo.  03 ;  and  see  Kimball  v.  Spieer,  12  Wis. 
670 ;  Gardiner  r.  Kellogg,  14  Wis.  603  ;  Wolcott  v.  Standley,  62  Ind.  199 ; 
IxoUaday  v.  Davis,  5  Oreg.  43  ;  generally  Hart  v.  Smith,  30  Conn.  97. 

2  McClanahan  t'.  Beasley,  17  Mon.  B.  117 ;  generally  State  r-.  Jacob. 
2:?.Io.  App.  185 ;  Arosomenar.  Hiakley,  11  Jones  &  S.  4o  ;  compare  also 
:ili!lard  v.  Baldwin,  3  Grav,  4S6 ;  Oliver  v.  Crawford.  1  Mo.  IS-S  :  Ponder 
V.  McGruder,  42  Ga.  2-14  ;  B.  &  L.  Ry.  Co.  r.  Metcalfe,  4  Met.  t  Kv.1  2C4 ; 
Lovell  V.  Xclson,  6  Marsh.  J.  J.  243;  Harnov  v.  Butcher,  15  Mo.  93; 
and  s^e  Chettenham  F.  B.  Co.  v.  Cook,  44  Mo.  40  ;  Wolcott  v.  Stand- 
ley,  62  Ind.  109 ;  Goodrich  v.  Milwaukee,  24  Wis.  4-30 ;  Holladay  v. 
Davis,  5  Oreg.  43;  Considerant  v.  Brisbane,  22  X.  Y.  391 :  Person  v. 
Warren,  14  Barb.  491;  Davis  v.  Carpenter,  12  How.  Pr.  287;  St, 
AnthonvMi'l  Co.  f.  Vandall,  1  Minn.  251;  Winters  v.  Bush,  34  Cal. 
137;  Ryerss  v.  Farwell,  9  Barb.  617:  Tvler  v.  Houghton,  25  Cal.  20; 
compare  Fox  r.  Minor,  32  Cal.  116  r  Carrillo  v.  McPhillips,  55  Cal.  1.30 ; 
generally  Alsop  v.  Cairnes,  10  Johns.  3!)S ;  Treat  v.  Stanton.  14  Conn. 
4-51 ;  Life  Insurance  Co.  v.  Ray,  50  Tex.  517  ;  Waring  t'.  Turton,  44  Md. 
541. 

3  Price  v.  Phoenix  Ins.  Co.  17  Minn.  499 ;  and  see  Davidson  t'. 
Elms,  67  X.  C.  22S ;  Mebane  t- .  Mebane,  6G  X.  C.  3.>5 ;  compare  Treat  r. 
Stanton,  14  Conn.  451;  Denton  v.  Denton,  17  Md.  406;  see  also  Mc- 
Comas  r.  I'>s.  Co.  56  Mo.  575;  Van  Schaick  v.  Third  Ave.  Rv.  Co.  3S 
X^.  Y.  3.54  ;  Taylor  r.  Steamboat  Robert  Campbell,  20  :Mo.  2.59. 

4  Davidson  v.  Elms,  67  X.  C.  22S  ;  Mebane  r.  Mebane.  66  X.  C.  335 ; 
Love  7-.  .Johnson.  72  X.  C.  420  ;  Winters  v.  Rush.  U  Cal.  i:;7 ;  Willey  v. 
Gatling,  70  X.  C.  421 ;  and  see  Xicolay  r.  Fritschle,  40  Mo.  67. 


?  33  WHO  MAY  SUE  AND  BE  ST7ED.  100 

5  Willey  V.  Gatling,  70  IS".  C.  421 ;  generally  Castner  v.  Hnmiier,  2 
Mimi.  47 ;  Donohoe  v.  Gamble,  33  C;al.  :-!ol ;  compare  Marble  v.  Wlialey, 
33  JMiss,  162 ;  and  see  Peck  v.  iJodds,  10  Nov.  207. 

6  Poorman  v.  Mills,  35  C'al.  120;  but  see  Abrams  v.  Ciireton,  72 
N.  C.  526. 

7  Hart  v.  Stone,  SO  Conn.  £7, 

8  Ashton  V.  Atlantic  Bank,  S  Allen,  213 ;  generally'  Carrillo  v.  Mc- 
Pbillips,  55  Cal,  130.  . 

9  Malin  v.  Malin.  2  Johns.  Ch.  240 ;  and  see  Elmer  v.  T^ouer,  25 
N.J.  Eq.  480;  Willink  v.  Morris  Canal  Co.  4  N.  J.  Eq.  3y7;  Dmin  v. 
8cymour,  UN.  J.  Eq.  221;  generally  Hitchcock  v.  Bank  of  United 
States,  7  Ala.  425  ;  Howard  v.  Sneliing,  23  Ga.  471 ;  B.  &  L.  Ky.  Co.  v. 
Metcalfe,  4  Met.  (Ky.)  204  ;  Stone  v.  Hall,  17  Ala.  664, 

10    Ferguson  i\  Applenhite,  10  Smedes  &  M.  303;  geuerallj-  Mc- 
Clanahan  v.  Beaseley,  17Mon.  B.  117. 
n    Ploward  v.  Snelling,  23  Ga.  474. 

12  Trustees  of  M.  E.  Church  v.  Adams,  4  Orog.  7S ;  generally 
Beatty  v.  Kurtz.  2  Peters,  old  ;  compare  Malin  r.  Malin,  2  Johns.  Ch. 
240;  Cross  r.  Jackson,  5  Hiil,470;  Harper  v.  Crawford,  13  Ohio,  129; 
but  see  Gibson  v.  Armstrong,  7  Mon.  B.  487;  Shickerman  v.  Scever, 
12  Johns.  401 ;  see  also  Kelly  v.  Love,  20  Gratt.  130;  East  Haddam  B. 
Church  r.  E.  Had.  Bap.  Soc.  44  Conn.  260 ;  First  Cong.  Soc.  v.  Trustees, 
23  Pick.  151. 

13  Cox  i\  Walker,  26  Me.  512 ;  generallv  Burns  v.  Sanderson,  13  Fla. 
384 ;  compare  Morrow  v.  Odom,  14  S.  C.  623. 

14  Cox  V.  Walker,  26  Me.  512 ;  see  Bockes  v.  Hathorn,  78  N.  Y.  227. 

15  Wright  V.  Bundy,  11  Ind.  402 ;  generally  Hays  ?'.  Galio!i  G.  St.  A 
Coal  Co.  2J  Ohio  St.  33-1 ;  compare  Alabama  L.  Ins.  Co.  v.  Pcttv/ay,  24 
Ala.  561 ;  see  also  Shelden  v.  Bennett,  44  Mich.  G34. 

16  Bockes  v.  Hathorn,  73  N.  Y.  224. 

17  BrinkerhoCf  v.  Wemple,  1  Wend.  474. 

18  Boyden  v.  Parlridge,  2  Gray,  193. 

19  Macv  V.  Nantucket,  121  Mass.  351 ;  and  see  Norton  v.  Boston,  U'J 
Mass.  194. 

20  McAllister  v.  Plant,  54  Miss.  117;  Richeson  v.  Ryan,  15  III.  13; 
and  see  Conwav  i\  Roane,  10  Ark.  242 ;  Nichols  v.  Campbell,  10  Gratt. 
565. 

21  Mauldin  v.  Armistead,  14  Ala.  707 ;  generally  Powell  v.  Knox,  IS 
Ala.  363. 

22  Cobb  V.  Edmondson,  30  Ga.  31  ;  Dumas  v.  Bobbins,  43  Ala.  54S ; 
but  see  Bumpass  ?•.  Richardson,  1  Stewt.  17  ;  compare  Cartwright  v. 
Gardiner,  5  Cush.  273  ;  Warland  v.  Colwell,  10  R.  I.  370. 

23  Adams  v.  Leland,  7  Pick.  63;  see  Bumpass  v.  Richardson.  I 
Stewt.  17 ;  and  compare  Warland  v.  Colwell,  10  R.  I.  S71 ;  see  also 
McDougal  V.  Carey,  33  Ala.  536. 

24  Gibbons  v.  Gentry,  20  Mo.  472. 

25  Oliver  v.  Crawford,  1  Mo.  183. 

g  33.  Trustess,  actions  against.  —  Altliotigli  the  trustee  of 
an  express  trust  may  sue  alone,  it  niav  be  seriously  doubted 
whether  he  can  be  siied  alone  in  an  action  relating  to  the  trust 


1:H  TBUSTEES.  §  33 

piDperty.i  When  an  action  is  brought  against  a  naked  trustee 
'  Ticeniing  trust  property,  the  cestui  should  be  joined  as  dcfcud- 
it."^  and  generally  to  a  suit  agaiust  trustees  to  enforce  the  exe- 
rtion of  a  trust,  the  cestui^  claiming  present  interest  dii'ectly 
posed  to  those  of  the  plaintiff  should  be  joined  as  partiis 
fcudaut.^  An  action  may  be  maintained  (with  the  consent 
the  State)  against  the  trustees  of  the  ]!tIin:ie.>ota  Hospital  for 
iusane,  to  determine  the  title  to  State  lands  held  by  them.* 
When  a  creditor  cl.iims  in  opposition  to  a  deed  of  trust  made 
by  his  debtor,  and  seeks  to  set  it  aside  on  the  ground  that  as  to 
him  it  is  fraudulent  and  void,  he  may  proceed  against  the 
trustee  who  holds  the  legal  title  without  joining  the  cestui  que 
trust.^  In  a  proceeding  to  set  aside  a  deed  made  by  one,  since 
deceased,  to  a  trustee  for  the  wife  of  the  grantor,  the  trustee 
must  be  joined  as  defendant,  otherwise  the  legal  title  will  not 
b3  divest-'d.°  A  proceeding  against  trustees  for  a  fraudulent 
breach  of  trust  is  an  exception  to  the  rule  that  in  a  suit  against 
trustees  all  must  be  made  parties  J  In  an  equitable  proceeding 
the  representative  of  a  deceased  trustee  may  bo  joined  v."ith  the 
survivor  when  the  breach  occurred  prior  to  the  death  of  the 
joint  trustee.*^  When  an  assignment  is  made  by  a  debtor  to  a 
trustee  for  the  benefit  of  creditors,  the  trustee  is  personally 
liable  for  neglect  resulting  in  the  loss  of  a  dobt  of  the  trust 
estate;'*  so  the  trustee  is  personally  liable  for  breach  of  duly 
iu  disposing  of  trust  funds.i"  When  a  building  contract  is 
entered  into  by  the  trustees  under  a  will,  they  are  personally 
liable  to  the  contractor  if  it  is  regarded  as  a  personal  contract, 
and  is  not  binding  upan  the  estate. ^^  When  a  person  receives 
money  as  trustee,  and  for  the  benefit  of  a  third  person,  he  is 
liable,  if  he  fails  to  pay  it  over,  iu  an  action  for  money  had  and 
received. 12  T;Yhen  property  has  been  assigned  by  a  debtor  to  a 
trustee  to  sell  and  divide  the  proceeds  pro  rata  among  the 
creditors,  one  creditor  cannot,  after  the  property  has  been  sold, 
maintain  an  action  for  an  accounting  and  for  payment  of  his 
lyro  rata  share, ^^  the  trustee  is  liable  only  for  one  final  account, 
to  which  all  interested  persons  should  be  parties;'*  after  a 
lapse  of  twenty  years  it  is  too  late  to  object  at  the  hearing  that 


§  33  "WHO  MAY  SrE  AND  BE  SUED.  102 

other  cestuis  were  not  made  parties. ^^  The  maker  of  a  deed  of 
trust  on  account  of  his  continuing  liability  to  the  creditors,  and 
of  his  resulting  trust,  is  entitled  to  have  an  account  from  the 
ti'ustee,  and  in  a  bill  for  that  pui'pose  need  not  make  the 
secured  creditors  pai'ties.^''  So  the  cestui  may  call  the  trustee 
to  account  for  trust  funds,  without  making  the  person  a  party, 
with  whom  the  trustee  has  seen  proper  to  divide  the  trust 
fuud.i'  If  one  trustee  after  accepting  the  trust  voluntarily 
permit  i  his  co-tmstee  to  take  the  management  of  the  trust,  and 
the  possession  and  control  of  the  trust  funds,  both  are  answer- 
able.i**  The  Statute  of  Limitations  is  not  a  bar  to  a  suit  against 
the  trustee  of  an  unclosed  trust,  which  relates  to  the  trust 
property ;  ^^  but  if  the  trust  be  closed  the  right  may  be  in- 
voked. 2"  When  a  fund  is  in  the  hands  of  a  trustee  which  he  is 
bound  to  distribute  to  different  persons  in  unascertained  pro- 
portions, all  interested  should  be  made  parties  to  a  suit  to  re- 
cover the  same ;  but  when  the  sum  that  each  is  to  receive  has 
been  ascertained  by  a  proceeding  binding  upon  the  trustee,  each 
person  entitled  may  maintain  a  separate  action  for  his  share. 21 
In  ejectment  the  only  questions  which  arise  with  regard  to  the 
title  are  as  to  its  validity  at  law.  22  If  B.  place  money  in  the 
bands  of  X.  to  purchase  lands  for  A.,  a  bill  to  enforce  the  per- 
formance of  the  trust  may  be  maintained  in  the  name  of  the 
cestui  que  trust,  the  trustee  being  made  a  defendant. ^^ 

1  Dillon  V.  Bates,  30  Mo.  299. 

2  Grr.ves  v.  Steel,  4  Greene,  377. 

3  Sears'?'.  Plardv,  r20  Mass.  523  ;  generally  Micb  St.  Bank  v.  Gard- 
ner, 3  Gray.  :^0S  ;  Galclwell  v.  Taggart.  4  Peters,  203  ;  Ciark  v.  Keyburn, 
8  Wall,  old ;  see  Voorhis  v.  Gamble,  6  Mo.  App.  2. 

4  St.  Paul  &  Chicago  By.  Co.  v.  Brown,  24  Miss.  572. 

5  Tucker  v.  Zimmerman,  61  Ga.  601 ;  Rogers  v.  Rogers,  3  Paige, 
380 ;  and  compare  Winslow  v.  Minn.  &  P.  Ry.  Co.  4  Mimi.  316. 

6  Erishman  v.  Erishman,  53  Mo.  367  ;  and  see  Fletcher  v.  Collier, 
61  Ga.  553. 

7  Cunningham  r.  Pell,  5  Paige,  612;  generallv  Van  Dyck  v.  Mc- 
Quade,  57  How.  Pr.  70  ;  Hun  v.  Cary,  82  X.  Y.  70. 

8  Lortove  i\  Scott,  6  Bans.  278 ;  and  see  Bloodgood  v.  Mickle.  15 
Abb.  Pr.  107 ;  generally  King  v.  Talbot,  40  X.  Y.  83 ;  S.  C.  King  v. 
Talbot,  50  Barb.  479. 

9  Rovall  V.  McKoiizie,  25  Ala.  363 ;  and  see  "Winn  v.  Crosby,  52 
How.  Pr.  175. 


103  ASSIG>'EES.  ?   34 

10  Jam  PS  V.  Cowing,  17  Hun,  257, 

11  Morgan  v.  Stevens,  6  Abb.  X.  0.  362  ;  generally  Austin  i', 
^.lunro.  47  N.  Y.  364  ;  Xew  v.  XicoU.  73  X.  Y.  130  ;  Duvall  v.  Craig,  2 
AVlieat.  5o. 

12  Catkin  v.  Birehard,  13  Mich.  110  ;  and  see  Spencer  r.  Towles,  13 
:.tich.  10. 

13  McPherson  v.  Parker,  30  Cal.  4.>'3. 

14  McPherson  v.  Parker,  30  Cal.  450  ;  Bailey  v.  Bergen,  67  N.  Y. 
•■V47. 

15  Munford  v.  Murray,  6  Johns.  Ch.  10. 

16  Torullnson  r.  Clay  well,  4  Jones  Eq.  320';  generally  Patton  i\ 
lioncini,  6  Ired.  Eq.  206. 

17  Felton  y.  Long,  8  Ired.  Eq.  225  ;  compare  Fletcher  v.  Collier,  61 
(Ja.  653. 

13  Royall  i\  McKenzie,  25  Ala.  374  ;  Monell  v.  Monell,  5  Johns.  Ch. 
2'1 ;  Munford  v.  Murray,  6  Johns.  Ch.  16. 

19  West  r.  Sloan,  3  Jones  Eq.  105 ;  compare  Atty.-C;en.  r.  Old 
South  Soc.  13  Allen,  4D5. 

20  Whedbee  r.  Whedbee,  5  Jones  Eq.  394. 

21  Gen.  Mut.  I?is.  Co.  v.  Benson,  5  Duer,  174  ;  and  see  Hitchcock  i>. 
IJnsly,  17  Hun,  557. 

22  Doe  V.  Atkinson,  63  X.  C.  210;  and  see  Miller  r.  Atkinso:'.,  03 
X.  C.  .>40. 

23  Fleming  v.  Holt,  12  W.  Va.  152  ;  and  see  Culbertson  t- .  Matsou,  11 

:,ro.  4:!.^ 

^  34.  Assizor  and  assignee,  actions  by. —Personal  prop- 
erty in  the  adverse  possession  of  another  who  claims  it  as  Lis 
own  cannot  be  transferred  by  sale  even  by  the  real  owner ;  he 
has  bnt  a  right  of  action  against  the  possessor,  which  is  not  the 
subject  of  a  legal  transfer. ^  An  action  at  law  npon  a  chose 
not  assignable  at  common  law  must  be  prosecuted  in  the  name 
of  the  assignor  for  the  use  of  the  assignee.^  In  such  action 
the  interests  of  the  assignee  will  be  protected  from  the  inter- 
ference or  control  of  the  assignor.^  In  many  cases  the  right 
thus  to  sue  will  be  attended  with  the  condition  that  the  assignor 
bo  indemnified  against  costs.*  Tlie  debtor  after  notice  of  the 
assignment  may  do  no  act  to  prejudice  the  rights  of  the 
assignee, 5  but  if  the  whole  interest  be  assigned  may  by  express 
promise  become  directly  liable  thereon  to  an  action  by  the 
assignee  in  his  own  name.^  In  equity  the  rule  is  different,  the 
real  party  in  interest  must  maint.un  the  action.^  As  a  general 
rule  a  party  complainant  will  not  be  permitted  to  continue  to 
prosecute  a  pending  suit  after  ho  has  parted  with  liis  interest 


2  34  WHO   MAY   SUE  AND  BE  SUED.  104 

ill  the  siTbject-matter  thereof. **  By  statute,  however,  the  action 
mr.y  bo  continued  in  the  name  of  the  assignor,**  or  the  assignee 
may  be  substituted  as  complainant.^"  A  debtor  h  not  liable  to 
B2parate  suits  by  the  assignor  and  assignee  of  an  account  at  the 
same  time  ;  if  the  assignee  has  an  undoubted  riglit  to  sue,  the 
assignor  cannot  maiatain  an  action  therecm  in  his  own  name.^^ 
A  plainti:!'  is  the  real  isarty  in  interest  under  the  Code ;  if  he 
has  a  valid  transfer  as  ag  linst  the  assignor,  and  holds  the  legal 
titlo  to  the  demand, ^'-^  f.:e  mere  fact  that  the  transfer  is  color- 
able only  as  between  the  parties  is  no  defense,  ^^  even  if  he  is  liable 
t:)  another  as  a  debtor  upon  his  contract  for  the  collection. i*  An 
assignment  of  a  part  of  a  demand  irf  void  at  law,  and  cannot  be 
enforced  by  the  assignee  without  the  consent  of  the  debtor  ;  ^^ 
but  he  may  in  equity  maintain  suit  thereon  even  without  such 
consent,  jDrovided  all  parties  in  interest  are  joined  in  the 
action. i*^  When  the  assignee  of  a  pretended  demand  was  in- 
duced to  pay  money  in  consideration  of  the  assignment  by  the 
false  and  fraudulent  representations  of  the  assignor  that  the 
demand  was  valid,  ho  may  recover  the  money  so  i^aid  in 
assumpsit  under  the  common  counts. ^^  A  mere  stranger  who 
volr.ntarily  pays  money  upon  a  mortgage,  and  fails  to  take  an 
assignment  but  allows  the  mortgage  to  be  canceled,  cannot 
afrerwai'ds  come  into  equity,  and  iu  absence  of  fraud,  accident, 
or  mistake  have  the  mortgage  reinstated  and  himself  substi- 
tuted in  the  place  of  the  mortgagee. ^^  The  contractor  or  his 
assigns  are  the  only  persons  authorized  to  maintain  an  action 
to  enforce  the  lien  of  an  assessment  on  a  lot  for  the  improve- 
ment of  a  street  in  San  Frnncisco.^^  A  mechanic's  lien  and 
demand  may  be  assigned,  and  the  assignee  may  sue  in  his  own 
name, 20  Y7hen  the  estate  of  a  bankrupt  has  been  transferred 
to  the  assignee,  the  latter  is  the  only  person  to  maintain  an 
action  upon  claims  and  demands  due  the  estate, ^^  and  the  fail- 
r.re  to  sue  for  the  term  of  two  years  will  not  enable  a  creditor 
tJ  eue  in  his  oxvn  name, 5^^  If  the  assignee  sell  a  chose  in  action 
belonging  to  the  estate,  the  purchaser  may  maintain  an  action 
thereon  in  the  name  of  the  assignee.''''*  A  foreign  assignee  can- 
not maintain  an  action  in  his  own  name  in  local  courts  relative 


103  ASSIGN-EES.  I  34 

to  the  property  of  tliG  estate,  pai'ticiilarly  if  the  rights  of  resi- 
dent credit jrs  would  thereljy  te  ftfiected.'^*  After  the  fiduciary 
character  of  the  assignee  has  eeftsed,  ftfld  he  has  heen  dis- 
charged, he  cannot  maintain  an  actios  for  the  trust  funds. '^^ 
When  A.  gave  X.  a  promi>soiy  note  as  coflaldefdtion,  and  to 
induce  X.  to  sign  and  enter  into  a  composition  agfeetnetit  of  B. 
with  hi.s  creditors,  the  amount  evidenced  hy  said  note  being  iu 
excess  of  the  amount  stipulated  by  said  composition  hold,  A. 
could  not  recover  back  the  amount  paid  to  a  hona  fide  holder 
of  the  note  from  X.,  such  agreement  being  a  fraud  upon  the 
composition  creditors."^  One  of  several  individual  creditors 
who  have  become  parties  to  aa  assignment  may  maintain  an 
action  of  covenant  broken  against  the  assignee  without  joining 
the  other  creditors;  the  claim  of  the  creditor  is  several  and 
not  joint.-' 

1  McGoon  V.  Ankeny,  11  111.  .>53 ;  and  see  Gilbert  7'.  Holmes,  &5  111, 
5.55;  compare  Roger  WilUaius  Ins.  Co.  v.  Carringtou,  43  ZyU^b.  253; 
Prica  V.  Talley,  16  Ala.  25;  Hali  v.  Robinson,  2  Comst.  2.55. 

2  Labaume  v.  Sweeney,  17  Mo.  154 ;  Park  v.  Toledo  C.  S.  &  Det. 
Ry.  41  Mich.  3.55;  Varuey  v.  Bartlett,  5  Wis.  278;  and  see  Skinner  ?>. 
Lomes,  14  Mass.  107;  Chapin  v.  Vt.  &  Mass.  Rv.  Co.  8  Grav,  .576; 
Armsby  v.  Farnam,  16  Pick.  321;  Guthrie  v.  White,  1  Dall.  26S;  Mc- 
Kinney  v.  Alvis,  14  111.  34 :  Pric?  v.  Talley,  18  Ala.  25;  Mt.  Olivet  C-.^m. 
Co.  ;•.  Stubert,2  Head,  120;  Johnson  v.  Irby,  S  Hnmph.  6-54;  see  also 
Mims  V.  Swartz,  .37  Tex.  14;  Spencer  v.  Woodbjrv,  1  Minn.  106;  com- 
pare Heifer  r.  Alden,  3  Minn.  :335:  Elkinton  v.  Fenuimore,  13  Pa.  St 
173;  Kerr  v.  Bank  of  Chilicothe,  Wright,  737. 

3  Belton  v.  Gibbon,  17  X.  J.  (7  Halst.)  77;  Gordon  v.  Drury,  20 
X.  H.  3.5:?;  and  see  Creighton  v.  Hyde  P.-irk.  6  Bradw.  274;  Luht  v. 
Stevens,  24  Me.  535 ;  Deaver  v.  EUer,  7  Ired.  Zq.  24 ;  Sloan  v.  Somers, 
14  ^'.  J.  L.  512. 

4  Gordon  v.  Drury,  20  IST.  H.  3.S4 ;  Creighton  v.  Hyde  Park,  6 
Bradw.  274  ;  Smith  v.  Wooding,  20  Ala.  S23. 

5  Creighton  v.  Hyde  Park,  6  Bradw.  274  ;  and  soo  Lunt  r.  Stove':3, 
24  Me.  535;  Dyer  v.  Homer,  22  Pick.  25fi;  St.  John  r.  Charles,  105 
Mass.  262 ;  IIowclI  v.  Medler,  41  Mich.  642 ;  generally  Clark  v.  Parlzer. 
4  Cush.  36;5. 

6  Simonds  v.  Pierce,  51  Vt.  460 ;  Folsom  v.  Belknap  Co.  M.  P.  I. 
Co.  30  X.  H.  240 :  Mowry  t'.  Todd,  12  IMl-SS,  2S4  ;  Vose  v.  Treat,  5->  Mo. 
3&;i;  compare  (hauvin  v.  Labargo,  1  Mo,  3.7;  see  also  McPec'.c  v. 
Moore,  51  Vt.  271  ;  Burrows  v.  Glover,  108  Mr.ss.  o25. 

7  Varney  ?'.  Bartlett,  5  Wis.  27S;  and  see  Bakey?-.  Bend.  Z  TL±x. 
Ch.  .50i);  Newsom  v.  Newsom,  5  Ired.  Eq.  125;  generally  Miller  ?•. 
Whittier,  'il  Me.  20!) ;  Carpenter  v.  Robinson,  1  Holmes,  67 ;  Wal!:er  ;•. 
Brooks,  125  Mass.  241  ;  Gaston  v.  Blum,  14  Conn.  347. 

8  Towusend  i-.  Carpenter,  11  Ohio,  22 ;  Varacy  v.  Bartlett,  5  Wis. 

278. 

9  Cutler  v.  Waddingham,  3;^  Mo.  2S4. 


^34  "VTHO  MAY   SUE  AXD  BE   SUED.  106 

10  Dougherty  v.  Smith,  4  Met.  (Kj-.)  280 ;  Cantrell  v.  Hewlett,  2 
Bush,  312, 

11  Peck  V.  Dodds,  18  K"ev.  204 ;  and  see  Castuer  v.  Sumner,  2  Minn. 
47 ;  compare  Johnson  v.  Irby,  8  Humph.  654. 

12  Sheridan  v.  Mayor,  68  N.  Y.  32  ;  Stone  v.  Frost,  Gl  N.  Y.  G15 ;  and 
S'^e  Russell  v.  The  Minnesota  Outfit,  1  Minn.  '67;  Long  v.  Heinrich, 
4 )  Mo.  604 ;  Swails  v.  Coverdill,  17  Ind.  338 ;  Mills  v.  Murry,  1  Xeb. 
.5^7;  Martin  v.  Ihmsen,  21  How.  395;  Mims  v.  Swartz,  37  Tex.  14; 
Thompson  v.  Railroad,  6  Wall.  138;  Devine  v.  Martin,  15  Tex.  30; 
Park  V.  Toledo  C.  S.  &  Det.  Rv.  Co.  41  Mich.  355 ;  Wheatlev  v.  Strobe, 
12  CaJ.  98 ;  Gradwohl  v.  Harris,  29  Cal.  154 ;  see  also  Bank  of  Com- 
merce ?'.  Bogg,  44  ISIo.  15 ;  Ogden  v,  Slade,  1  Tex.  14 ;  Langdon  v. 
Thompson,  25  Minn.  511 ;  Allgoever  v.  Edmunds,  63  Barb.  580. 

13  Slieridan  v.  Mayor,  C8  N.  Y.  32  ;  Mewherter  v.  Price,  11  Ind.  199. 

14  Allen  v.  Brown,  44  N.  Y.  231 ;  and  see  Durgin  v.  Ireland,  14  X.  Y. 
326  ;  Castnor  v.  Sumner,  2  Minn.  47  ;  Gradwohl  r.  Harris,  2;)  Cal.  155  ; 
Carpenter  v.  Johnson,  1  Xev.  3.33  ;  Peters  v.  St.  Louis  I.  M.  Ry.  Co.  24 
Mo.  587  ;  generallj'  Smith  v.  Chic.  &  N.  Western  Ry.  Co.  23  ^^'is.  269  ; 
Abrams  v.  Curlton,  74  N.  C.  535. 

15  Creighton  v.  Hvde  Park,  6  Bradw.  275 ;  and  see  Raines  v.  United 
States,  11  Ct.  of  CI.  650  ;  Oelrichs  v.  Artz,  21  Md.  530  ;  compare  Rohe 
V.  Huth,  14  Cal.  406  ;  West  v.  Foreman,  21  Ala.  402  ;  see  also  Leese  i\ 
Slieerwood,  21  Cal.  164  :  Mandeville  v.  Welch,  5  Wheat.  232  ;  Shauk- 
land  V.  Washington,  5  Peters,  392  ;  Lawery  v.  Steward,  25  N.  Y.  341 ; 
generally  Secor  v.  Sturgis,  16  N.  Y.  554  ;  Smith  v.  Jones,  15  Johns.  229  ; 
Herriter  r.  Porter,  23  Cal.  386  ;  Palmer  v.  Merrill,  6  Cush.  285  ;  Badger 
V.  Titcomb,  15  Pick.  412  ;  Ingrahm  v.  Hall,  11  Serg.  &  R.  82  ;  Cassel- 
berry  v.  Forquer,  27  111.  172  ;  Knight  v.  W.  &  M.  Ry,  Co.  1  Jones,  3^  ; 
Martin  v.  Hayes,  1  Busb.  424. 

16  Grain  v.  Aldrich,  38  CaL  518  ;  and  see  Randou  v.  Barton,  4  Tex, 
292. 

17  Burton  v.  Driggs,  20  Wall.  136  ;  generally  Pipkin  ?-.  James,  1 
Humph.  326  ;  Lyan  v.  Annable,  4  Conn.  354  ;  D'Utricht  r.  Melchor,  1 
Ball.  429. 

18  Guv  V.  De  Uprev,  16  Cal.  199  ;  compare  Carr  v.  Caldwell,  10  Cal, 
384  ;  Garwood  v.  Eldridge,  2  N,  J.  Eq,  148, 

19  Bars  v.  Lapidge,  52  Cal.  481  ;  and  see  Dyer  -!'.  Barstow.  50  Cal.  654  ; 
Taylor  v.  Palmer,  31  Cal.  249  ;  compare  St.  Louis  etc,  v.  Rudolph,  ;i6 
Mo',  465  ;  New  Orleans  v.  Elliott,  10  La.  An.  59. 

20  Rogers  v.  Omaha  Hotel  Co,  4  Xeb.  59. 

21  Glenn V  v.  Langdon.  98  U.  s.  20  ;  Trimble  v.  Woodhead,  11  The 
Reporter,  553  ;  generally  Harris  v.  Cornell,  80  111.  56  ;  Wheeler  v. 
Wheedon,  9  How.  Pr.  299  ;  Jenkins  v.  Greenbaum,  95  111.  18  ;  Langdon 
V.  Thompson,  25  Minn.  511  ;  Rossman  v.  McFarland,  9  Ohio  St.  377. 

22  Trimble  v.  Woodhead,  11  The  Reporter,  553, 

23  Hart  v.  Stone,  30  Conn.  97  ;  and  see  Camack  v.  Bisquay,  18  Ala. 
28G  ;  Wilcox  v.  Toledo  &  Ann.  A,  Ry.  43  Mich.  585. 

24  Upton  r.  Hubbard,  28  Conn.  284  ;  Perry  v.  Barry  1  Cranch  C.  C. 
204;  generally  Booth  v.  Clark,  17  How.  337;  Hoyt  v.  Thompson,  5 
N.  Y.  332  ;  Milne  v.  Moreton,  6  Binn.  .3.59  ;  see  Metcalf  v.  Yeaton,  51 
Me.  200  ;  Smith  v.  Railroad  Co.  23  Wis.  270. 

25  MorriJl  v.  Dunn,  39  Me.  281. 

26  Solinger  v.  Earle,  82  N.  Y.  396. 

27  Mitchell  v.  Kendall,  45  Me,  235  ;  and  generally  Card  v.  Wal- 
bridge,  18  Ohio,  411. 


107  ASSIGN-EES.  ^  35 

§  35.    Sane  continued—  Actions  npon  promissory  notes.— 

In  an  action  by  the  assignee  of  an  unnegotiablo  note  or  bond 
he  should  style  himself  in  the  ■writ  "  assignee,"  etc.  ;  if  he  does 
not  he  cannot  amend. ^  He  can  only  maintain  action  against 
his  immedi-ito  assignor  at  law,  but  in  equity  a  remote  assignor 
may  be  reached. ^  A  promise  in  -writing  by  one  firm  to  pay  a 
specified  sum  of  money  on  a  day  certain  to  another  firm  -which 
has  a  common  partner  is  not  a  promissory  note  until  after 
assignment,  when  as  between  the  maker  and  the  assignee  the 
latter  is  considered  as  the  payee,  and  may  maintain  an  action 
in  his  own  name.^  When  a  note  is  given  fo  a  partnership  it 
should  bo  transferred  by  indorsement  in  the  name  of  the  firm, 
but  under  the  pro-visions  of  the  Code,  if  indorsed  by  one 
partner  in  his  o-wn  name,  the  indorsee  may  sue  thereon.-*  A 
person  tD  -whom  a  note  ^  and  guaranty  ^  has  been  transferr,  d  by 
verbal  assignment  becomes  invested  -with  the  right  of  property 
in  the  chose  in  action,  and  as  the  real  party  in  interest  may 
maintain  an  action  thereon  in  his  o-wn  name.  An  action  upon 
a  promissory  note  should  be  brought  in  the  n^me  of  him  -who 
has  the  legal  title ;  thus  -where  a  note  payable  to  A.  or  bearer 
becomes  the  property  of  B.,  yet  no  delivery  of  the  note  has  in 
fact  been  made,  suit  to  collect  the  proceeds  must  be  com- 
menced in  the  name  of  A.^  If,  however,  the  note  had  been 
delivered,  the  holder  is  invested  -with  the  legal  title,  and  may 
sue,  even  though  it  be  proved  that  A.  be  dead,  that  the  note 
belonged  to  him  at  the  time  of  his  death,  and  belonged  to  his 
estate.**  When  a  negotiable  promissory  note  is  transferred  by 
proper  indorsement;  the  indorsee  becomes  thereby  invested  -with 
the  legal  title,  and  is  the  proper  person  to  sue  thereon.''  The 
plaintiff  need  have  no  beneficial  interest  in  the  note  sued  on,^'' 
unless  there  is  some  defense  against  the  other  alleged  equitable 
owners  or  beneficiaries, ^^  if  he  has  the  right  of  possession,  and 
is  the  legal  owner,  he  may  sue. 12  A  plaintiff  is  the  real  part}-  in 
interest  under  the  Code  if  he  has  a  valid  transfer  as  against  the 
assignor,  and  holds  the  legal  title  to  the  demand  ;  ^^  the  posses- 
sion of  a  note  is  prima  facie  evidence  of  o-wnership,  and  the 
holder  mav  maintain  an  action  thereon, 1*  whether  it  be  indorsed 


§  35  WHO   MAY   SUE   AND  BE   SUED.  108 

or  not;'^  and  so  the  holder  may  maintain  an  action  iipon  a 
note  transferred  not  by  indorsement  or  delivery,  but  by  a  sep- 
arate ^vriting.^s  When  notes  are  transferred  fcr  purposes  of 
collection  the  bolder  may  maintain  an  action  tbcrecn  in  bis 
own  namc;^^  and  so  also  if  transferred  mere'y  as  collateral 
secux'ity,;!*^  so  the  bolder  may  sue  all  or  any  of  the  parties  to  a 
bill  or  noto  at  bis  option.^"  The  bolder  of  a  note,  payable 
in  specific  chattLls  transferred  generally  by  indorsement,  may 
maintain  an  action  thereon  in  bis  own  name.^"  The  bolder  of 
a  note  regularly  transferre  d  by  indorsement  is  the  proper  per- 
son ti  sue  thereon, 21  and  nothing  short  of  mcdajider,  or  notice 
thereof  will  enable  the  maker  or  an  indorser  to  defeat  the 
action. 22  A  bill  of  exchange  may  be  drawn  payable  to  the 
order  of  the  eirawer,  and  when  indorscel  the  bolder  may  sue  the 
acceptor  in  bis  own  name. 2^  A  debt  cvidenceel  by  a  note  which 
is  lost  may  be  assigned  so  as  to  enable  the  assignee  to  sue 
thereon  in  liis  own  name  ;  21  the  payee,  however,  prima  facie  is 
the  owner  ;  23  in  such  suit  a  thirel  person  who  claims  to  be  the 
rightfrj  owner  may  assert  bis  rights  by  intervention. 2*>  A  con- 
tract under  seal,  though  in  the  form  of  a  promissory  note,  is 
not  a  negotiable  instrument,  unless  expressly  maele  so  by 
statute  ;  2'  if  indorsed,  as  between  the  indorsee  and  his  imme- 
diate inelorser  (the  payee),  the  liability  is  the  same,  as  a  rule, 
as  the  indorsement  of  a  negotiable  instrument,  but  not  as  to 
subsequent  hold:rs,  unless  the  indorsement  is  "to  the  indorsee 
or  order ;  or  the  inelorser  expressly  promises  to  pay  the 
holder ;  28  but  the  bolder  by  indorsement  as  the  real  party  in 
interest  may  maintain  an  action  thereon  in  bis  own  name.2« 
The  assignment  of  a  note  secured  by  a  mortgage  in  eepiity  car- 
ries with  it  the  security,  and  the  assignee  may  maintain  an 
action  to  enforce  the  lien  ;^"  but  where  B.,  a  citizen  of  Massa- 
chusetts, dieel  there,  having  in  bis  possession  a  bond  auel  mort- 
gage executed  by  Z.,  a  citizen  of  South  Carolina,  upon  laud  in 
the  latter  State,  it  was  held  that  the  administrator  of  the  estate 
of  B.,  appointed  in  Massachusetts,  could  not  assign  the  bond 
and  mortgage  so  as  to  enable  the  assignee  (a  resident  of  South 
Carolina)  to  sue  thereon. ^^    The  assignee  of  a  note  given  for 


103  assig>t:es.  ?  35 

the  rent  of  laud  may  maintain  an  action  for  money  had  and 
received  against  tlie  pai'chasc-r  of  the  crop  who  bought  with 
L, sepe  of  the  lien,  and  has  sold  the  same,  and  received  the  pio- 
-cde  th  the  sale.-^^  xhe  assignee  of  a  note  given  for  the  pur- 
I  tio  no  ce  of  real  pi-operty  may,  after  acquiring  the  legal  title 
feriqe  payee,  maintain  an  action  to  foreclose  a  title  bond  exe- 
cuted to  the  maker  by  such  payee,  for  a  conveyance  upon  pay- 
-lent  of  the  note;^-*  but  the  assignment  of  a  note  given  in 
ursuance  of  a  contract  does  not  necessarily  transfer  a  right  of 
.jtion  for  a  breach  of  the  contract,  or  enabla  him  to  base  a 
:  laim  thereon  in  order  to  cancel  a  set-ofiF  against  the  note,  nor 
vvill  an  action  on  the  note  by  the  assignee  be  a  bar  to  an  action 
for  breach  of  the  contract  by  the  assignor.^*  "^Tien  the  right 
of  action  is  barred  by  the  Statute  of  Limitations,  or  a  discharge 
in  insolvency,  a  new  promise  by  the  maker  of  a  note  to  tl:e 
payee  enures  to  a  subsequent  indorsee,  and  he  may  maintain 
an  action  thereon. ^^  When  one  without  the  use  of  force  or 
threats  compelling  his  will  does  or  aids  iu  doing  an  act  that  by 
law  is  made  a  criminal  offense,  he  cannot  maintain  an  action  to 
recover  back  money  or  property  so  paid ;  thus  if  A.  executes 
his  note  to  X.  for  the  purpose  of  compounding  a  crime,  which 
note  A.  is  subsequently  forced  to  pay  to  a  ho)ia  fide  holder,  he 
cannot  maintain  an  action  against  X.  to  recover  the  amount  so 
paid.^^  When  the  real  owner  of  a  promissory  note  assigned  it 
to  a  ficticious  person,  and  brought  suit,  and  recovered  judg- 
ment thereon  in  his  name,  upon  a  bill  to  enjoin  the  collection 
of  the  judgment  the  real  owner  should  be  permitted  (in  absence 
of  fraud)  to  be  made  a  party  and  defend  the  suit.^" 

1  Thompson  v.  3Ialone,  13  Rich.  29.3  ;  generally  Xolson  v.  John- 
son, IS  Ind.  3;G. 

2  "Weaver  ?•.  Beard,  21  Mo.  156  ;  and  see  Tucker  v.  Shiner.  24  Iowa. 
3:a ;  but  see  Hamilton  v.  McDonald.  IS  C'al.  129:  generally  Harris  r. 
Johnston,  .3  Cranch.  311  ;  Johnson  v.  Henderson,  76  N.  C.  228  ;  Helfvjr 
V.  Alden,  3  Minn.  :j.32. 

3  Murdock  v.  Caruthers,  21  Ala.  788  ;  generally  Lacy  r.  TLe  Bruce. 
6  Ala.  9a5 :  Banks  v.  Mitchel.  8  Yerg.  112  ;  Woods  v.  Ridley.  11 
Humph.  194  ;  but  see  Hill  v.  MePherson,  15  Mo.  206. 

4  Ala.  Coal  Min"g  Co.  v.  Brainard,  35  Ala.  479 ;  see  Halstead  v. 
Shetlard,  23  Ala.  569. 

5  CJreen  r.  Marble.  .37  Iowa,  96  ;  AVillard  v.  Moies,  30  Mo.  142  ;  see 
also  Ciark  v.  Brown,  70  Ind.  405;  compare  Morris  v.  Poillou,  50  Ala. 

Parties  — 10 


g   35  WHO   IMAY    SUE   AND   BE   SUED.  110 

406  ;  Chilton  v.  Cabiness,  14  Ala.  449  ;  Crain  v.  Paine,  4  Cush.  485 ; 
Brush  V.  Curtis.  4  Conn.  315  ;  but  see  Waters  v.  Millar,  1  Dall.  370 ;  see 
also  Ross  V.  Smith,  19  111.  172. 

6  Green  v.  Marble,  37  Iowa,  96 ;  and  see  Bennett  v.  Pound,  23  Mo. 
539. 

7  Hathcock  v.  Owen,  44  Miss.  802  ;  and  see  Wimbish  v.  Solt,  26 
Tex.  675  ;  Caldwell  r.  Lawrence,  84  111.  161 ;  Spofford  ?•.  Norton,  126 
Mass.  534  :  Allen  v.  Pannell,  bl  Tex.  IGS  ;  compare  Marr  v.  Plummer, 
3  C4reenl.  75  ;  Gage  v.  Johnson,  20  Me.  433. 

8  Butler  v.  Robertson,  11  Tex.  143. 

9  Lohnian  v.  Cass  Co.  Bank,  87  111.  616;  Caldwell  v.  Lawrence.  84 
111.  16 1;  Bradford  i\  Bucknam,  12  Me.  16  ;  Gage  v.  Johnson,  20  Me.  438. 

10  Garner  v.  Cook,  30  Ind.  331  ;  Spoflford  v.  Xorton,  126  Mass.  5"3  ; 
Logan  r.  Cassell,  88  Pa.  St.  290  ;  but  see  Bean  v.  DolliflF,  63  Me.  231. 

11  Ticonic  Bank  v.  Baglev,  68  Me.  249  ;  Allen  v.  Pannell,  51  Tex. 
16S  ;  Kknn  v.  Buckner.  30  La.  An.  680. 

12  Perrine  v.  Thompson,  17  Blatchf.  19  ;  Hays  v.  Hathorn.  74  N.  Y. 
486  ;  Klein  v.  Buckner,  SO  La.  An.  6S0  ;  Freeman  v.  Falconer.  44  X.  Y. 
Sup.  Ct.  132  ;  Cochran  v.  Doll,  32  Cal.  90  ;  compare  Williams  v.  Nor- 
ton, 3  Kan.  298. 

13  Freeman  v.  Falconer,  45  N.  Y.  Sup.  Ct.  384  ;  see  Rohrer  v.  Tur- 
rill,  4  Minn.  410  ;  McCann  v.  Lewis,  9  Cal.  246  :  Castner  v.  Sumner,  2 
Minn.  47  ;  compare  Williams?'.  Norton,  3  Kan.  298  ;  TerrvCo.  Supt.  i\ 
Sexton,  48  Ala.  324  ;  Carpenter  v.  Miles,  17  Mon.  B.  602  ;  Pearson  r. 
Cummings,  23  Iowa,  345. 

14  Garner  v.  Cook,  30  Ind.  332 ;  McCaun  v.  Lewis,  9  Cal.  246 ;  see 
Stevens  v.  Souger,  14  Ind.  342. 

15  Garner  v.  Cook,  30  Ind.  332:  Wilson  v.  Clark,  11  Ind.  385;  see 
Pearson  v.  Cummings,  2S  Iowa,  345. 

16  Morris  v.  Poillon,  50  Ala.  406  ;  compare  Brush  v.  Curtis,  4  Conn. 
315  ;  and  see  McClain  v.  Weidemeyer,  25  Mo.  366  ;  Rockwood  v. 
Brown,  1  Gray,  263. 

17  Beattie  v.  Lett,  28  Mo.  556 ;  Simmons  v.  Belt.  35  Mo.  466 ;  gen- 
erally Hancock  v.  Ritchie,  11  Ind.  48  ;  compare  White  t'.  Stanley,  29 
Ohio  St.  428  ;  but  see  Abrams  v.  Cureton,  74  N.  C.  526  ;  Newson  ?•. 
Russell,  77  N.  C.  278  ;  generally  Poorman  v.  Mills.  35  Cal.  120  ;  King 
V.  Fleece,  7  Heisk.  27G  ;  Wells  v.  Schoonover,  9  Heisk.  805 ;  Worthing- 
ton  1'.  Greer,  17  Mon.  B.  747  ;  Cummings  v.  Morris,  25  N.  Y.  527  ; 
Weeks  v.  Medler.  20  Kan.  65  ;  Garner  v.  Cook,  30  Ind.  331  ;  compare 
Dann  v.  Norris,  24  Conn.  337  ;  Nichols  v.  Gross,  26  Ohio  St.  425:  Rob- 
inson V.  Wilkinson,  33  Mich.  300  ;  Royce  v.  Nye,  52  Vt.  374. 

18  Overall  v.  Ellis,  32  Mo.  326  ;  generallv  Carper  v.  Munger,  62  Ind. 
481 ;  Hunter  v.  Levan,  11  Cal.  12  ;  Dulles  v.  De  Forest,  19  Conn.  201. 

19  Page  V.  Snow,  18  Mo.  127  ;  compare  Bullitt  v.  Thatcher,  5  How. 
(Miss.)  689. 

20  Elkinton  v.  Fennimore,  13  Pa.  St.  173  ;  generally  Reed  v.  Ingra- 
ham,  4  Dall.  169  ;  compare  Rogers  v.  Union  Stone  Co.  130  Mass.  583; 
and  see  Draper  v.  Schreiber,  15  Mo.  602. 

21  Clawson  v.  Cone,  2  Handv,  67  ;  generally  McCann  v.  Lewis,  9 
Cal.  246  ;  Price  v.  Dunlap,  5  Cal.  484  ;  Ross  v.  Smith,  19  Tex.  172  ; 
Canefox  r.  Anderson,  22  Mo.  347. 

22  City  Bank  of  Nev,-  Haven  v.  Perkins,  29  N.  Y.  563. 

23  Hart  v.  Shorter,  46  Ala.  454. 

24  Long  V.  Constant,  19  Mo.  320. 


Ill  ASSIGNEES.  g  36 

25  Prior  v.  Dunlap,  5  Cal.  485. 

26  Stich  V.  Dickinson,  38  Cal.  609. 

27  Ifelfer  v.  Alden,  3  Minn.  3:^5;  and  see  Burkhead  v.  Brown.  5 
Hill,  W6  :  Carroll  v.  Still,  13  8.  C.  432  ;  compare  Mvers  v.  York  etc. 
Ry.  Co.  43  Me.  233. 

28  Heifer  v.  Alden,  3  Minn.  ;53.5. 

23  Miller  v.  Henrv,  54  Ala.  121  ;  Sullivan  v.  Hellains,  6  8.  C.  i34  ; 
compare  Carroll  r.  Still,  13.  S  C.  4:C 

:»  Holmes  v.  French,  70  Me.  344  ;  generally  Guest  v.  Byington,  14 
Iowa,  31. 

31  Dial  V.  Gary,  14  S.  C.  578  ;  see  Pond  ?'.  Makepeace,  2  Met.  116  : 
Stevens  v.  Gavlor,  11  Ma.ss.  263  :  compare  Peterson  i\  Chemical  Bank, 
32  N.  Y.  4') ;  Harper  v.  Butler,  2  Peters,  233  ;  see  also  McCarty  v.  Hal  , 
13  Mo.  481. 

32  Westmoreland  v.  Foster,  60  Ala.  453 ;  and  generally  compare 
Strother  v.  Steamboat,  11  Iowa,  60  ;  Butt  v.  Ellett,  19  Wall.  547. 

33  Guest  V.  Byington,  14  Iowa,  31. 

34  Wetmore  v.  Neuberger,  44  Mich.  363. 

35  Smith  v.  Richmond,  19  Cal.  476  ;  and  see  Way  v.  Sherry,  6  Cush. 
241  ;  Watkins  r.  Stevens,  4  Barb.  170. 

36  Haynes  7'.  Rudd,  83  N.  Y.  252. 

37  Triplett  v.  Vandergrift,  8  Mon.  B.  421. 

I  36.  Contracts  under  seal,  bond,  covenants,  etc.  — No  one 
but  a  party  to  a  contract  under  seal  can  maintain  an  action 
thereon  ;i  he  has  the  legal  interest  therein.-  The  rule  is  con- 
clusively settled  that  in  a  deed  inter  partes,  that  is  to  say,  if  it  is 
expressed  to  be  made  between  certain  psrsons  named  in  it  as 
executing  it,  although  a  covenant  be  expressed  in  the  instru- 
ment for  the  benefit  of  a  third  person,  an  action  can  only  be 
brought  in  the  name  of  one  of  the  parties,  and  not  in  the  name 
of  such  third  person.^  Where  an  official  bond  is  taken  in  the 
name  of  the  commonwealth,  suit  may  be  maintained  in  its 
name  for  the  use  of  the  person  injured;*  in  all  suits  upon 
official  bonds  and  bonds  payable  to  the  State,  the  relator  must 
be  the  party  in  interest.^  In  Iowa  it  has  been  declared  by 
statute  that  when  a  bond  or  other  instrument  given  to  any 
psrson  is  intended  for  the  security  of  particular  individuals, 
suit  may  be  brought  thereon  in  the  nameof  any  person  intended 
to  be  secured,  and  who  has  sustained  injury  by  reason  of  a 
breach  thereof;  under  this  law  it  was  held  a  person  might 
maintain  a  suit  upon  a  bond  intended  for  his  benefit,  even 
though  his  name  was  not  mentioned  therein.*"    In  California 


§   36  WHO  MAY  SUE  AND  BE  SUED.  112 

an  action  mnst  be  prosecuted  in  the  name  of  the  real  party  in 
interest.''  Thus  a  bond  made  to  the  people  of  the  State  of  Cal- 
ifornia may  bo  sued  upon  by  the  person  injured  by  a  breach 
thereof.*^  X.,  a  warehouseman,  executed  a  bond  to  the  com- 
monwealth of  Kentucky,  binding  himself  to  collect  and  pay 
over  to  the  owner  the  money  arising  from  the  sales  of  tobacco 
stored  with  him  ;  held  whether  the  instrument  was  good  as  a 
statutory  bond  or  not,  it  was  good  as  a  common-law  bond,  and 
that  plaintiff  as  the  real  party  in  interest  had  the  right  to  sue 
upon  it  in  its  own  name  for  a  breach  of  its  condition.**  In 
Illinois  a  constable's  bond  conditioned  to  pay  "each  and  every 
parson  who  may  be  entitled  thereto,"  ....  being  a  good  stat- 
utory bond,  should  not  be  sued  upon  in  the  name  of  the 
people,  but  action  should  be  commenced  in  the  name  of  the 
parson  sustaining  the  injury.^"  B.  the  owner  of  land  conveyed 
the  same  to  X.,  who  executed  a  mortgage  back  to  B.  to  secure 
the  purchase  price,  and  also  conditioned  to  pay  a  debt  and 
mortgage  upon  the  same  premises,  due  from  B.  to  A.,  this 
being  a  promise  to  a  third  person,  suit  upon  the  latter  promise 
cannot  be  maintained  by  A.^^  At  common  law  assumpsit  would 
not  lie  by  the  assignee  of  a  bond  to  recover  the  amount  due 
him,  except  upon  the  express  promise  of  the  debtor  to  pay 
him-i'-^  But  by  statute  in  several  States  the  assignee  is  the  legal 
owner  and  may  sue  in  his  own  name.^^  When  the  legal  title  is 
in  the  governor,  and  the  statute  permits  suit  to  be  brought  "at 
the  cost  and  charge  of  any  party  injured,"  and  the  bond  stipu- 
lates for  moneys  collected  to  the  proper  party  ....  or  his 
assigns,  suit  may  be  maintained  theron  in  the  name  of  the  gov- 
ernor to  the  use  of  the  assignee.^*  Where  separate  interests 
are  held  by  several  persons  under  the  same  policy  of  insurance 
they  may  be  iinited  by  assignment  of  the  instrument  in  one 
person  who  may  bring  suit  ther^^on.^^  When  an  instrument  is 
executed  jointly  to  several,  one  of  the  joint  payees  or  obligees, 
or  his  assignee,  may  sue  in  the  name  of  all.^^  A  contract  in 
writing  to  convey  land  may  be  assigned  by  verbal  agreement, ^^ 
and  the  assignee  may  enforce  a  specific  performar:ce  in  his  own 
name.i*^    A  suit  by  the  assignee  of  one  of  two  obligees  en  a 


113  ASSIGNEES.  §  36 

Lond  is  not  a  bar  to  a  subgequent  suit  by  the  same  person  for  a 
tpccitic  performance  of  the  contract  brought  after  he  has  ac- 
quired the  interest  of  both  obligees.^**  When  a  lessor  assigns 
the  rent  of  certain  premises,  the  assignee  may  sue  for  the  rent 
nbsequently  accruing,  although  the  reversion  be  not  as- 
-Cned;  -'•'  the  assignee  of  a  lease  may  maintain  an  action  in  his 
\  n  name  for  rent  subsequently  accruing  ;  '^^  but  the  assignment 
li'Hild  be  in  writing,  a  mere  "indorsement  of  the  lease"  is 
ijot  sufficient -2  Covenants,  real,  run  Avith  the  land,  and  if 
Ijioken  the  right  of  action  for  the  breach  is  in  the  transferee  of 
tlie  covenantee ;  "^  but  a  covenant  against  encumbrancers  being 
in  presierdi  does  not  run  with  the  land,  and  cannot  be  as- 
signed so  as  to  enable  the  assignee  to  sue  in  his  own  name."'* 
When  a  deed  is  made  by  X.  to  A.  and  delivered,  and  subse- 
quently with  the  consent  of  both  X.  and  A.  the  name  of  A.  was 
erased  and  that  of  B,  substituted  as  grantee,  held  B.  could  not 
inaintaiu  an  action  for  breach  of  the  covenant  of  seizin  con- 
tained in  the  deed."^^  In  equity  the  equitable  owner  of  notes 
secured  by  a  mortgage  is  the  proper  person  to  maintain  a  suit 
to  foreclose  the  same.^^  The  assignment  of  a  bond  secured  by 
mortgage  carries  with  it  the  security,  but  the  assignment  of 
the  security  does  not  necessarily  carry  wit'.i  it  the  debt.'-^^ 
When  thirteen  persons  made  a  joint  a:.d  several  note  to  three 
of  their  number,  and  secured  the  same  by  mortgage,  the  three 
80  secured  were  held  entitled  to  foreclose  the  security. 28  A 
mortgage  made  to  secure  two  notes  payabl*  to  different  persons 
may  be  foreclosed  by  the  holder  of  eitlier  note,  the  other  being 
made  a  defendant. 2**  A  mortgagor  of  personal  property  may 
maintain  an  action  for  damages  to  his  reversionary  interest, 
even  though  he  has  no!  the  right  to  immediate  possession.^" 
If  by  the  t'jrms  of  the  mortgage  he  is  entitled  to  take  possession, 
whenever  he  may  deem  it  necessary  to  his  safety  or  the  security 
of  the  debt,  he  may  maintain  replevin  against  one  who  takes 
the  same  in  defiance  of  his  rights. ^^  After  the  law  day  has 
passed,  being  entitled  to  the  immediate  possession  of  the  mort- 
gaged chattels,  he  may  maintain  detinue  therefor  against  the 
mortgagor.^-     A  creditor  who  has    proceeded    to   judgment 


g   36  WHO   MAY  SrE  AND  BE   SUED.  114 

against  his  debtor,  and  lias  his  execution  returned  unsatisfied,^^ 
may  file  his  bill  in  equity  and  reach  the  property  and  effects  of 
his  debtor  not  subject  to  execution  at  law :  he  may  file  his  bill 
in  his  own  name  and  for  his  own  benefit,^*  or  join  with  other 
creditors  standing  in  the  same  situation  in  a  suit  for  their 
common  benefit ;  ^^  or  he  may  file  a  bill  in  behalf  of  himself 
and  such  other  creditors  as  may  choose  to  come  in  under  the 
decree.^''  A  justice  judgment,  when  the  amount  is  sufficient  to 
give  the  court  of  chancery  jurisdiction,  is  as  well  entitled  to 
the  aid  of  that  court  as  the  judgment  of  a  court  of  record.*^ 
This  equitable  relief  may  be  obtained  in  two  classes  of  cases  — 
for  the  purpose  of  removing  obstructions  fraudulently  or  in- 
equitably interposed  for  the  pui'pose  of  preventing  a  sale  on  the 
execution, ^^  and  to  obtain  satisfaction  of  a  debt  out  of  property 
that  cannot  be  reached  by  execution  at  law,^"  if  the  fund  is 
only  accessible  to  a  court  of  chancery,  and  cannot  be  reached 
at  law.-*"  Where  the  debtor  is  deceased,  and  especially  so  if 
the  estate  is  insolvent,  creditors  may  resort  to  chancery  in  the 
first  instance,  without  having  obtained  a  judgment  at  law  ; " 
but  as  a  general  rule  a  court  of  equity  will  not  interfere  at  the 
instance  of  a  general  creditor  before  judgment,  to  set  aside  a 
voluntary  conveyance  of  property  alleged  to  have  been  made 
for  the  purpose  of  defrauding  creditors,  and  restrain  by  injunc- 
tion the  sale  or  other  disposition  of  property  in  fraud  of  his 
creditors.*^  In  one  case  the  equitable  relief  sought  vests  upon 
the  fact  that  execution  has  been  issued,  and  a  specific  lien  has 
been  acquired  upon  the  property  of  the  debtor  by  its  levy,  but 
that  the  obstruction  interposed  prevents  a  sale  of  the  property 
at  a  fair  valuation,  it  is  to  remove  the  obstruction  and  thus 
enable  the  creditor  to  obtain  a  full  price  for  the  property  that 
the  suit  is  brought.''"*  In  the  other  case  the  court,  when  its  aid 
is  invoked,  looks  only  to  the  execution,  and  the  return  of  tlie 
officer  to  whom  the  writ  was  directed,  the  execution  shows  that 
the  remedy  afforded  at  law  has  been  pursued,  and  is  the  highest 
evidence  of  the  fact,  the  return  shows  whether  the  remedy  has 
been  effectual  or  not,  and  upon  that  jioint  it  is  conclusive.**  A 
judgment  creditor  has  no  right  of  action  against  a  purchaser  at 


115  ASSIG>'EES.  ^36 

execution  sale  to  recover  damages  for  breach  of  the  contract  of 
sale  ;  *^  the  officer  is  the  proper  person  to  maintain  the  action ; 
BO  also  for  a  wrongful  taking  from  the  officer,  after  prox)erty 
has  been  levied  upon  and  while  the  levy  is  in  force/**  At  com- 
mon law  the  assignee  of  a  judgment  could  not  sue  thereon  in 
his  own  name  because  such  a  chose  was  not  assignable ;  but 
courts  have  long  recognized  his  beneficial  interests  and  per- 
mitted him  to  sue  in  the  name  of  the  person  holding  the  legal 
title, ■•'  and  now  by  statute  in  many  States  he  may  sue  in  his 
own  name.-*** 

1  Flynn  r.  No.  Am.  L.  Ins.  Co.  115  Mass.  449  ;  La  Grange  ?•.  Chap- 
man, 11  Mich.  500;  Thomp.sou  r.  Thompson,  4  Heisk.  1"JG ;  Holmes  r. 
Fisher,  13  N.  H.  11 ;  How  v.  How,  1  N.  H.  51 ;  Gov.  of  Arkansas  v. 
Ball.  1  Hemp.  545  ;  Sproul  v.  Lawrence,  33  Ala.  6^  ;  Agnew  v.  Leath, 
63  Ala.  346  ;  Hager  v.  Phillips,  14  HI.  250. 

2  Northampton  »-.  Elwell,  4  Gray,  81 ;  Johnson  v.  Filley,  12  Met. 
163  ;  compare  Ct.  of  Probate  v.  Sprague,  3  R.  I.  210. 

3  Hager  r.  PhUlips.  14  HI.  2-50  :  Harris  v.  Plant,  31  Ala,  6:»  ;  Smith 
V.  Emery.  12  N.  J.  L.  60  :  compare  National  Bank  r.  Segur,  39  X.  J.  L. 
175  :  Dick  )•.  Reynolds,  4  Martin  N.  S.  529  ;  Duchamp  r.  Nicholson.  2 
Martin  N.  S.  674. 

4  Commonwealth  i'.  Teal,  14  Mon.  B.  24  ;  see  Lane  v.  Ka.sev,  1  Met. 
413. 

5  Jackson  r.  Bounds,  59  Ind,  120 ;  Neal  v.  The  State,  49  Ind.  51  ; 
Chipley  v.  Albea.  8  Jones,  205  ;  AVoodworth  r.  Woodworth,70Mo.  601. 

6  HujitLngton  v.  Fisher,  27  Iowa,  277  ;  and  see  Moorman  r.  Collier, 
32  Iowa,  139. 

7  Baker  v.  Bartol,  7  Cal.  553. 

8  Taafife  v.  Rosenthal,  7  Cal.  518  ;  Curiae  v.  Packard.  23  Cal.  195  ; 
compare  MacBeth  v.  Van  Sickle,  6  Nev.  i:i5  ;  but  see  Agnew  r.  Leatli, 
6.3  Ala.  346. 

9  Lane  v.  Casey.  1  Met.  413  :  but  see  Agnew  v.  Leath,  &i  Ala.  346  ; 
compare  Court  of  Probate  v.  Sprague,"  3  R.  I.  210  ;  Duchamp  v.  Nich- 
olson, 2  Martin  N.  S.  674  ;  Dick  v.  Reynolds,  4  Martin  N.  S.  520. 

10  Magner  v.  Knowles.  67  III.  326  ;  but  see  Roberis  v.  Parlin,  81  111. 
2:31  ;  Hager  v.  PhUlips,  14  111.  260. 

11  Gautzert  v.  Hoge,  73  III.  SO :  Mellen  ?•.  Whipple.  1  Grav,  320 ; 
Booth  V.  Conn.  Mut.  L.  Ins.  Co.  43  Mich.  301 ;  Prentice  v.  Brunhall, 
123  Mass.  293. 

12  Dubois  1".  Doubleday,  9  "Wend.  317  ;  Hudson  r.  Reeve,  1  Barb. 
91;  generally  Kinniken  i-.  Dulaney.  5  Har.  fDel.)  385;  Edgell  r. 
Tucker.  40  M"o.  526  :  Heifer  r.  Alden,  3  Minn.  -365  ;  compare  Carroll  r. 
Still,  13  S.  C.  4.32  ;  Myers  v.  York  etc.  Ry.  Co.  43  Me.  2:32. 

13  Robb  »•.  Parker.  3  S.  C.  70  ;  and  see  Bennett  v.  McGrade.  15  Minn. 
134  ;  Waterman  )•.  Frank.  21  Mo.  110  :  generally  Skinner  v.  Bedell,  32 
Ala.  47  :  Mut.  Pro.  Ins.  Co.  v.  Hamilton.  5  Sneed,  274  ;  Moorman  v. 
Collier.  32  Iowa,  139  ;  Warner  v.  Wilson,  4  Cal.  .313  ;  Snodgruss  v. 
Krenkle,  49  How.  Pr.  122  :  MUler  v.  Heurv,  •>!  Ala.  121. 


^36  WHO  MAY   SUE  AND  BE  SUED.  116 

14  Matthews  v.  Bailey,  25  Miss,  36  ;  compare  Hawkins  r.  Common- 
wealth, -i  Marsh.  A.  K.  1177 ;  Howe  i'.  Williams,  7  Mon.  B.  202  ;  Meier 
V.  Lester,  21  Mo.  112  ;  Moorman  v.  Collier,  32  Iowa,  139  ;  generally 
James  r.  The  .State,  4>J  Miss.  433. 

15  Mercantile  Ins.  Co.  v.  Holthaus,  43  Mich.  424  ;  generally  Mnt. 
Protec.  Ins.  Co.  v.  Hamilton,  5  Sneed,  274. 

16  Wright  V.  Lemore,  10  Yerg.  235. 

17  Currier  r.  Howard,  14  Gray,  513;  and  see  generally  Tnttle  v. 
Bebee,  8  Johns.  153  ;  Ford  v.  Stuart,  19  Johns.  344. 

18  Currier  ■!'.  Howard,  14  Gray,  513;  and  see  Ensign  r.  Kellogg.  4 
Pick.  5  ;  Owen  v.  Frink,  24  Cal.  177. 

19  Knott  V.  Stephens.  5  Oreg,  240. 

20  Kendall  v.  Garland,  5  Cush.  79  ;  generally  Heard  v.  Lockett,  20 
Tex.  163. 

21  Heard  i'.  Lockett.  20  Tex.  163. 

22  Chapman  v.  McGrew.  20  111.  103  ;  Beezley  v.  Jones,  1  Scam.  34  ; 
McLott  i\  Savery.  11  Iowa  325;  Moorman  v.  Collier.  32  Iowa,  139; 
see  generally  Maruey  v.  Byrd,  11  Humph.  95  ;  Thomas  v.  Cox.  6  Mo. 
507. 

23  Nunnallv  v.  White,  3  Met.  (Ky.)  594  ;  and  see  White  r. Whitney. 
3  Met.  81  ;  Gunter  v.  Williams,  40  Ala.  o68. 

24  PiUsburv  v  Mitchell,  5  Wis.  20  ;  Morrison  v.  Underwood,  20 
N.  H.  371  ;  compare  Hall  v.  Dean,  13  Johns.  106  ;  Foote  v.  Burnet.  10 
Ohio  330;  and  see  generally  IS! oonan  v  Ilsley,  21  Wis.  143;  Brooks  i'. 
Water  Lot  Co.  7  Ga.  103. 

25  Hilmert  v.  Christian.  29  Wis.  107. 

26  Irish  v.  Sharp.  89  111.  263  ;  Pease  ?'.  Warren,  29  Mich.  10  ;  :\rartin 
V.  McBevnolds.  6  Mich.  72  ;  Hahn  v.  Huber,  83  111.  243  ;  Ord  v.  McKee, 
5  Cal.  516  ;  see  Catlett  v.  Bacon,  33  Miss.  280. 

27  Cleveland  v.  Cohrs,  10  S.  C.  224  ;  see  Pease  v.  Warren,  29  INIich.  10. 
23    McDowell  v.  Jacobs.  10  Cal.  389. 

23    Bankm  v.  Major,  9  Iowa,  298. 
SO    Googius  V.  Gilmore.  47  Me.  16. 

31  Welsh  V.  Sackett,  12  Wis.  254  ;  and  see  Newman  v.  Ty meson.  13 
AVis.  174. 

32  Mervine  v.  White,  50  Ala.  389. 

33  Ballentine  v.  Beall,  3  Scam.  206  ;  McCaffrey  r.  Hickey,  66  Barb. 
491 ;  Brlttian  r.  Quiet,  1  Jones  Eq.  329  ;  Goncelier  v.  Foret,  4  Minn.  17; 
Hyde  v.  Chapman.  33  Wis.  399  ;  Scott  v.  Ware.  64  Ala.  181. 

34  Bigeiow  v.  Andress,  31  111.  335  ;  Annin  v.  Annin,  24  N.  J.  Eq.  188  ; 
Marsh  v.  Burroughs,  1  Woods,  467  ;  co  npare  McDonald  v.  Ateii,  1 
Ohio  St.  293  ;  contra,  Scott  v.  Ware,  64  Ala.  182. 

35  Ballentine  v.  Beall,  3  Scam.  206  ;  Marsh  v.  Burroughs,  1  Woods. 
467  ;  Ewing  v.  Ferguson,  33  Gratt.  5.58  ;  Scott  v.  Ware,  64  Ala.  182. 

.36  Ballentine  v.  Beall,  3  Scam.  206 ;  see  Goncelier  v.  Foret,  4 
Minn.  17. 

37  Steere  r.  Hoagland,  39  111.  266  ;  Dix  v.  Briggs,  9  Paige,  606 ;  Bailey 
1'.  Burton,  8  Wend.  345. 

38  Gates  v.  Boomer.  17  Wis.  472  ;  Hyde  v.  Chapman,  33  Wis.  397  ; 
Robert  v.  Hodges,  16  X.  J.  Eq.  302  ;  Swayze  v.  Swayze,  9  2^.  J.  Eq.  280. 


117  ASSIGNEES,  \   37 

33  Beak  V.  Bnrditt,  1  Paige,  305 ;  Marsh  v.  Burroughs,  1  Woods, 
467  ;  Dunphy  v.  Kleinsmilh.  11  Wall.  615  ;  Robert  i'.  Hodges,  16  X.  J. 
Eq.  '^-  ;  Jones  r.  Greeu,  1  Wall.  .'Wl. 

40  8ee  Mittnight  v.  Smith,  17  X.  J.  Eq.  261  ;  Deveney  v.  Mahonev, 
23  N.  J.  Eq.  2-18. 

41  Steere  v.  Hoagland,  39  III.  266;  Brittian  v.  Quiet.  1  Jones  Eq. 
329  ;  Offutt  V.  King,  1  McAr.  314  ;  compare  Hills  »•.  Sherwood,  43 
Cal.  392  ;  Sucklev  r.  Rotchford,  12  Gratt.  <>5  ;  Dobbins  v.  Halfacre,  52 
Miss.  .t62  ;  Estill  r.  McCentic,  11  W.  Va.  405  ;  Pratt  v.  St.  Clair.  6  Ohio. 
22-^ :  McDonald  c.  Aten,  1  Ohio  St.  293  ;  contra,  Scott  v.  Ware,  64  Ala. 
l^l  ;  compare  Lonaillier  v.  Castille,  14  La.  An.  77s ;  Neda  v.  Fontenot, 
2  La.  An.  78;J. 

42  Oberholser  r.  Greenfield,  47  Ga.  533 ;  Robert  v.  Hodges,  16  X.  J. 
Eq.  30:5 ;  Swayze  v.  Swayze,  9  X.  J.  Eq.  280  ;  Weil  v.  Lankins.  3  Xeb. 
386;  and  see  Craig  v.  Webster,  36  Me.  504;  compare  Mittnight  r. 
Smith,  17  X.  J.  Eq.  261  ;  Deveney  v.  Mahoney,  23  X.  J.  Eq.  24s. 

43  Jones  v.  Green,  1  Wall.  3;12, 

44  Jones  r.  Green,  1  Wall.  a32  ;  Weil  v.  Lankins.  3  Xeb.  386 ;  Beek 
V.  Burdett,  1  Paige,  :«)8  ;  McElwain  v.  Willis,  9  Wend.  55;*;  compare 
Robert  v.  Hodges,  16  X.  J.  Eq.  302 ;  S\%-avze  v.  Swavze  9  X.  J.  Eq. 
280;  and  see  Davis  v.  Dean,  25  X.  J.  Eq.  436 ;  Tarbelt  v.  Griggs,  3 
Paige,  208 ;  Durant  v.  SuperA'isors,  26  Wend.  75  ;  McCartney  v.  Bost- 
wicK,  SI  X.  Y.  5:3 ;  Steere  r.  Hoagland.  3j  111.  266. 

45  Galpin  v.  Lamb, 29  Ohio  St.  534  ;  Armstrong  v.  Vroman,  11  Minn. 
222  ;  Gaskell  v.  Morris,  7  Watts  &  S.  38  ;  Chappell  v.  Dann,  21  Barb.  24. 

46  Aiisonio  B.  &  C.  Co.  v.  Pratt,  10  Hun,  444  ;  Howland  ?•.  Willits',  9 
X.  Y.  173. 

47  James  v.  The  State,  49  Miss.  433  ;  Lee  v.  Gardiner,  26  Miss.  537  ; 
State  V.  Miller,  11  Ired.  235  ;  Harger  v.  McCullough,  2  Denio,  llO ;  Dyer 
V.  Burnham,  48  Me.  299 ;  see  Goodrich  v.  Stevens,  116  Mass.  171  ;  Steele 
V.  Thompson,  62  Ala.  327. 

43  Wood  /•.  Decoster,  66  Me.  h\h ;  Eaton  v.  Lambert.  1  Xeb.  339  ; 
Kilgour  V.  Ratciiffe,  2  Martin  X.  S.  2%  ;  but  see  Johnson  r.  Martin,  54 
Ala.  272. 

\  37.  Contracts  made  for  tlie  benefit  of  tliircl  persons.— 
When  a  contract  is  made  expressly  fur  the  Lcneti'-  uf  a  third 
person,  such  third  person  mav  maintain  his  action  upon  the 
promise.^  And  in  many  cases  it  has  been  held  thai  an  action 
could  be  maintained  by  either  the  promisee  or  the  person  for 
whose  benefit  the  promise  is  made.-  Prior  to  the  provisions 
of  the  Code  the  person  for  whose  benefit  a  contract  was  made 
could  in  equity  maintain  an  action  upon  the  promise.^  Now 
the  person  with  whom  or  in  whose  name  a  contract  is  made  for 
the  benefit  of  another  may  bring  an  action  on  the  conti'act 
without  joining  the  beneficiary,  but  this  docs  not  take  the  right 
from  the  real  party  in  interest  to  bring  the  suit  in  his  own 
name.^    It  seems  to  be  the  well-settled  rule  that  where,  in  case 


§  37  WHO  MAY   SUE  AND  BE   SUED.  118 

of  simple  coniracts,  one  person  makes  a  promise  to  another  for 
the  benefit  of  a  third,  the  latter  may  maintain  an  action  npon  it 
thougli  the  consideration  does  not  move  from  -him.^  And  the 
rule  is  the  same  where  one  receives  money  or  property  to  the 
I1S3  of  a  third  person,  although  no  express  promise  be  proved.'' 
In  Wisconsin  and  some  other  States  the  rule  has  been  extended 
so  that  now  if  a  contract  be  entered  into  by  X.,  with  B.,  upon 
sufficient  consideration,  to  do  some  act  for  the  benefit  of  A., 
oven  though  the  contract  be  under  seal,  A.  may  sue  for  a  breach 
of  the  agreement.^  If,  however,  A.  is  a  mere  stranger  to  the 
contract,  and  only  incidentally  benefitted  thereby,  he  cannot 
sue  upon  the  contract,  even  though  one  of  the  contracting  par- 
ties might  enforce  it  against  the  other. ^  Where  A.  procured  a 
IDolicy  of  insurance  upon  his  life  from  X.,  an  insurance  company, 
which  iDclicy  was  made  to  C,  and  was  payable  to  him,  A.  can- 
not sue  X,  to  avoid  the  policy  on  the  gi'ound  of  fraud ;  and  even 
though  the  premiums  were  paid  by  him  with  his  own  money 
he  cannot  recover  it  back  in  an  action  for  money  had  and 
received.'-'  Where  B.  procures  a  policy  of  insurance  from  X., 
loss,  if  any  payable  to  A.,  as  his  interest  may  appear,  either  A. 
or  B.  may  sue  in  case  of  loss,^"  Where  B.  sells  property  to  X., 
who  thereupon,  at  the  request  of  B.,  executes  his  note  to  A.  in 
payment  therefor,  A.  is  the  proper  party  to  sue  thereon. ^^ 

1  Allen  V.  Thomas,  3  Met.  (Ky.)  199  ;  Phillips  v.  Bush,  15  Iowa,  64  ; 
Sailly  V.  Cleveland,  10  Wend.  162;  Barker  v.  Bucklin,  2  Denio,  47  ; 
Brewer  v.  Dyer.  7  Cush.  340  :  Nutter  v.  .Sydenstricker,  11  \V.  Va.  547  ; 
compare  Larned  v.  Carpenter,  65  111.  544  :  Phillips  v.  Van  Shaick,  37 
Iowa,  235. 

2  Steene  v.  Aylesford,  18  Conn.  253  ;  see  Allen  v.  Thomas,  3  Met. 
(Ky.)  199 ;  Smith  v.  Smith,  5  Bush,  632  ;  Rogers  v.  Gosnell,  51  Mo.  469  ; 
Stroun  V.  Hartford  F.  Ins.  Co.  33  Wis.  657, 

3  Clapp  V.  Lawton,  31  N.  H.  104. 

4  Smith  V.  Smith,  5  Bush,  633 ;  Rogers  v.  Gosnell,  51  Mo.  469, 

5  Rogers  v.  Gosnell,  5S  Mo.  589;  Barboro  v.  Occidental  Grove,  4 
Mo.  App.  433  ;  Kollock  v.  Parcher,  52  Wis.  399  ;  Barker  v.  Bucklin,  2 
Denio,  47  ;  Putnev  v.  Farnham,  27  Wis.  190  ;  Brewer  v.  Dyer,  7  Cush. 
340  ;  Bohiuian  v.  Pope,  42  Me.  96  ;  Ball  v.  Benjamin,  56  111.  106  ;  Steele 
r.  Clark,  77  111.  473  ;  Bristow  v.  Lane,  21  111.  196  ;  Kimball  v.  Noyes,  17 
Wis.  720  ;  Mason  v.  Hall,  30  Ala.  601  ;  Shotwell  ?-.  Gilkey,  31  Ala.  727  ; 
Exc.  Bank  v.  Rice,  107  Mass.  41  ;  contra,  Exc.  Bank  v.  Rice.  98  Mass. 
288;  Pipp7>.  Revnolds,  20  Mich.  92;  Clapp  v.  Lawton,  31  Conn.  103; 
Treat  v.  Stanton.  14  Conn.  451 ;  compare  Mellen  v.  Whipple,  1  Gray, 
329  ;  Dow  V.  Clark,  7  Gray,  200. 


f     119  ASSIGXEES.  g  3B 

6  Weston  v.  Barker,  12  Johns.  278  ;  Caniegie  v.  Morrison,  2  Met 
111 ;  Perry  v.  Swasy,  12  Cush.  40  ;  Kountz  r.  Holthouse,  85  Pa.  St.  2:^7  ; 
I  oinpare  Bartlett  v.  Matsoii,  1  Mo.  App.  J57  ;  Durham  v.  Bi.schof,  47 
1  I'l.  211  ;  Durham  v.  Hall.  67  Ind.  124. 

7  McDowell  V.  Lacy,  3-5  Wis.  175;  Rogers  r.  (iosnell.Sl  Mo.  469: 
Van  Shaick  r.  Third  Ave.  R.  Co.  SS  N.  Y.  :UC,  ;  Cosier  v.  Mayor  ol 
Albany.  43  N.  Y.  411  ;  see  Thompson  v.  Thompson.  3  Lea.  126  ;  contra, 
Millarri  t'.  Baldwin.  8  Graj'.  4S6  ;  compare  Patterson  v.  Triumph  Ins. 

I  I  Co.  64  Me.  50.'i :  Somes  7-.  Equitable  Safety  Ins.  Co.  15  Mass.  o^tl  ;  Gaut- 

I I  zert  V.  Hoge.  7^  111.  30 :  Millen  v.  Whipple,  1  Gray,  317  ;   Booth  v. 
f     Conn.  Mut.  L.  Ins.  Co.  43  Mich.  239. 

8  Lake  Ont.  Shore  R.  v.  Curtiss,  80  X.  Y.  222. 

9  Xo.  Am.  L.  Ins.  Co.  v.  Wilson.  11;  Mass.  542  ;  Ins.  Co.  r.  Wright. 
:;",  Ohio  St.  5-i7  ;  see  Campbell  v.  New  Eng.  Mut.  L.  Ins.  Co.  98  Mass. 
>2  ;  Flynn  v.  X.  Am.  Life  Ins.  Co.  115  Mass.  449. 

10  Williams  v.  Ocean  Ins.  Co.  2  Met.  306  ;  Somes  v.  Equitable  Safety 
Tiis.  Co.  12  Gray,  .532  ;  see  Patterson  v.  Triumph  In.s.  Co.  64  Me.  503; 
(  liamberlin  v.  N.  H.  Fire  Ins.  Co.  55  N.  H.  2.58  ;  Westchester  F.  Ins. 
'o.  ?•.  Foster.  90  111.  122;  Hammond  v.  Queen  Ins.  Co.  50  Wis.  24;i ; 
Brunswick  Sav.  Inst.  v.  Ins.  Co.  68  Me.  314  ;  Roussell  v.  Ins.  Co.  41 
X.  Y.  Sup.  Ct.  282  ;  Pitney  v.  Glenn  Falls  Ins.  Co.  65  X.  Y.  12  ;  New- 
man V.  Ins.  Co.  17  Minn.  126  ;  also  Ins.  Co.  v.  Davenport,  '.i7  Mich.  612  ; 
Strohn  V.  Ins.  Co.  33  Wis.  657  ;  compare  Berthold  v.  Ins.  Co.  2  Mo. 
App.  314. 

11  Stevens  v.  Songer,  14  Ind.  342. 

§  38.  Generally  in  actions  for  torts. —As  a  general  propo- 
sition, subject  it  may  be  to  some  exceptions,  any  person  in  the 
peaceful  possession  of  property  may  sue  and  recover  for  any 
wrongful  damage  it  may  sustain  against  any  person  but  the 
true  owner,  and  even  against  him  if  the  possession  is  rightful 
and  coupled  with  an  interest,  or  he  has  a  qualified  property 
therein. 1  The  sale  of  the  absolute  interest  in  a  personal  chattel 
by  the  tenant  of  the  particular  estate,  or  by  a  stranger,  instead 
of  liis  particular  interest,  is  an  injury  for  which  the  reversioner 
may  recover.^  One  who  has  repudiated  a  contract  for  fraud 
may  maintain  an  action  for  damages  against  the  wrong-doer.^ 
When  the  law  imposes  a  penalty  for  the  violation  of  a  duty  of 
which  one  part  goes  to  the  person  prosecuting,  the  other  to  the 
State,  an  action  may  be  brought  in  the  name  of  eitlier.-*  An 
action  of  trespass  de  honis  asportatis  is  properly  brought  in  the 
name  of  the  person  who  was  the  owner  of  the  goods  at  the  time 
of  the  trespass,  although  he  may  have  sold  them  at  the  time  the 
action  w^as  commenced.^  "When  an  action  of  trover  is  brought 
in  the  name  of  the  assignor  for  the  use  of  the  assignee,  and  the 
evidence  shows  that  the  conversion  took  place  after  the  assign- 


§  38  WHO  MAT  SUE  A>-D  BE   SUED.  120 

ment,  the  pleadings  cannot  be  amended  so  as  to  authorize  a 
recovery.*"  The  equitable  assignee  of  a  note  and  mortgage  of 
personal  property  may  maintain  an  action  in  the  name  of  the 
assignor  for  the  conversion  of  the  property  mortgaged."  "When 
trees  ujDon  land  are  severed  from  the  freehold  and  carried 
away,  they  become  personal  property,  and  an  action  of  trover 
may  be  maintained  for  their  value, ^  even  t!;oagh  the  conver- 
sion occurred  in  another  State.**  The  right  of  action  may  bo 
assignee!  so  as  to  enable  the  assignee  to  maintain  an  action 
thereon  in  his  own  name.^"  As  a  rule,  under  Code  practice,  all 
such  rights  of  action  for  a  tort  as  would  survive  to  the  personal 
representative  may  be  assigned,  so  as  to  enable  the  assignee  to 
assert  his  interest  in  his  own  name ;  ^^  but  rights  of  action  for 
torts  which  die  with  the  porson  are  not  the  subject  of  assign- 
ment.^-^ "When  the  prop3rty  of  B.  insured  by  A.,  an  insurance 
company,  was  negligently  destroyed  by  fire  communicated  by 
a  locomotive  owned  by  X.,  a  railroael  company,  it  was  held  that 
payment  of  the  amount  of  the  loss  by  A.  to  B.  amounted  to  an 
equitable  assignment  of  the  right  of  recovery  against  X.  for 
the  negligence,  and  that  A.  miglit  maintain  an  action  thereon 
in  the  name  of  B.-^  In  an  action  for  maliciously  burning 
plaintiffs  building,  neither  the  fact  nor  amount  of  defendant's 
liability  is  affected  by  payment  of  a  loss  by  insurers  of  the 
building,  nor  by  the  agi'eement  of  plaintiff  to  prosecute  the  suit 
for  their  benefit.^  -  A  cause  of  action  for  malicious  prosecution 
is  not  assignable  even  after  verdict.^^  "When  the  exclusive 
right  to  use  but  not  to  make  a  patentee!,  article  within  a  speci- 
fieel  territory  has  been  assigneil,  the  assignee  may  maintain 
an  action  against  an  infringer  in  his  own  namc.^*'  One  who 
has  been  improperly  subjected  to  damage  by  means  of  gar- 
nishee process  against  his  elebtors  may  maintain  an  action  for 
the  injury.^'  The  owner  of  lands  through  which  a  water 
course  runs  has  the  right  to  have  the  same  kept  open,  and  to 
discharge  therein  the  surface  water  which  naturally  flows 
thereto,  ancl  may  increase  the  volume  of  water  or  accelerate 
the  flow  in  a  reasonable  use  of  his  own  premises.^**  He  can- 
not, however,  concentrate  and  elischarge  by  means  of  artificial 


121  ASSIGNEES.  I   38 

arrangements  into  the  stream  surface  water  in  quantities  be- 
yond its  capacity,  J^  nor  can  he  turn  aside  the  water  from  other 
streams  and.  force  the  same  through  his  water  course  to  tlie 
damage  of  the  owner  below.2"  As  a  general  rale  when  any  act 
is  prohibited  by  law,  and  the  violation  theieof  is  made  a  mis- 
demeanor, any  injury  to  the  person  of  another  caused  by  such 
violation  is  the  subject  of  an  action. 21  When  a  plaintiff  seeks 
to  recover  for  an  injury  caused  by  the  negligence  of  another, 
he  must  himself  be  without  fault. 22 

1  C.  &  X.  W.  Ry.  Co.  r.  Shultz,  .5-5  111.  422  ;  Am.  Exp.  Co.  r.  Hag- 
sard,  37  111.  470;  Barker  v.  Miller,  6  Johns.  196;  :Miller  v.  Adsit,  16 
AVend.  ;i3.5  ;  Barker  v.  Biuninger,  14  X.  Y.  281  :  Gibbs  v.  Chase,  10 
Mass.  128  ;  Miller  v.  Baker,  1  Met.  30 ;  Stambaugh  v.  HollabauErh.  10 
serg.  &  R.  361  ;  .see  also  Hays  v.  Miller,  6  Hun,  .322  ;  Havs  v.  Miller, 
70  X.  Y.  172  ;  Triscony  v.  Orr,  49  Cal.  616  ;  Fickle  v.  Railroad  Co.  bi 
Mo.  222  ;  Shaw  v.  Railroad  Co.  57  Mo.  153. 

2  Williams  ?•.  BrasselL  51  Ala.  338  ;  Arthur  r.  Gayle,  33  Ala.  2.53  ; 
oompare  Ingraham  v.  Dunnell,  5  Met.  123  ;  Putney  r.  Lapham,  10 
Cush.  232. 

3  Warren  v.  Cole,  15  Mich.  272. 

4  Ry.  Co.  V.  Foster,  43  111.  480  ;  see  Phillips  v.  Bevans.  23  X.  J.  L.  374. 

5  Boynton  v.  Willard,  10  Pick.  166  ;  generally  Holly  r.  Huggsford, 

5  Pick.  76  ;  Langdon  i-.  Thompson,  25  Minn.  511  ;  Axford  v.  Mathews, 
43  Mich.  329. 

6  Slodder  v.  Grant,  28  Ala,  420 ;  generally  see  Chase  r.  Chase,  1 
Paige,  199  ;  Hanford  r.  Xichols,  14  Conn.  327. 

7  Crain  v.  Paine,  4  Cush.  4S6  ;  generally  Clapp  r.  Shepard.  2  Met. 
V-'f);  Cha.se  v.  Chase,  1  Paige,  199;  compare  Axford  v.  Mathews,  43 
3Iich.  :i29. 

8  Whidden  v.  Seelye,  40  Me.  2.55  ;  Tyson  v.  McGuineas,  25  Wis.  660  ; 
IMoody  V.  Whitney,  34  Me.  564  ;  Pierrepont  v.  Barnard,  5  Barb.  371  ; 
.Sampson  v.  Hammond,  4  Cal.  184. 

9  Tyson  v.  McGuineas,  25  Wis.  660  ;  Whidden  v.  Seelye,  40  Me.  255  ; 
and  see  Glen  v.  Hodges,  9  Johns.  70. 

10  Tyson  v.  McGuineas,  25  Wis.  660  ;  Grant  v.  Smith,  26  Mich.  203  ; 
Webber  v.  Quaw,  46  Wis.  118  ;  generally  Conkliu  r.  Hawthorne,  2j 
Wis.  476. 

11  Tyson  v.  McGuineas,  25  Wis.  660  ;  Jordan  v.  Gillen.  44  X.  H.  426  ; 
generally  Butler  v.  X'.  Y.  &  EtieRy.  Co.  22  Barb.  112  ;  Purple  v.  Hud- 
son R.  Ry.  Co.  5  Duer,  77  ;  McKee  r.  Judd,  12  X.  Y.  625  :  Xorth  r. 
Turner,  9  Serg.  &  R.  24S  ;  Hall  v.  Robinson.  2  Comst.  2;w  ;  and  see 
Smith  V.  Kennett,  IS  Mo.  155 :  Final  v.  Backus,  18  Mich.  231  ;  Finn  r. 
Coibett,  :«  Mich.  319 ;  compare  O'Xeall  v.  S.  C.  Ry.  Co.  9  Rich.  46.5 ; 
Sandford  v.  Xichols,  14  Conn.  .327  ;  Morrison  v.  Deaderick,  10  Humph. 
342 ;  C.  A;  A.  Ry.  Co.  v.  Maher,  91  111.  313  ;  see  also  McArthur  v.  G.  B. 

6  M.  C.  Co.  34  Wis.  153  ;  Carter  r.  Wilson,  61  Ala.  43.5. 

12  Final  r.  Backus.  18  Mich.  2-31,  authorities  supra. 

13  Hart  v.  Western  Ry.  Co.  13  Met.  lOS. 

14  Hay  ward  r.  Cain,  105  Mass.  214  ;  Clark  v.  Wilson,  103  Mass.  220. 

Parties  — 11 


g  88  WHO   MAY  SUE  AND  BS   SUED  122 

15  Lawrence  v.  Martin,  ^  Cal.  176  ;  g<?nerallj'  Comegy  ?•.  Vass?,  1 
Peters,  193  ;  Butler  v.  N.  Y.  &  Erie  Ry.  Co.  22  Barb.  112. 

16  Chambers  v.  Smith,  5  Fish.  Pat.  Cas.  1'^ ;  see  Gayler  v.  Wilder, 
10  How.  492  ;  compare  Continental  \V.  Co.  v.  Empire  W.  Co.  8  Blatchf. 
296. 

17  Noonan  v.  Orton,  SO  Wis.  357. 

18  McCormick  v.  Koran,  81  N.  Y.  S)  ;  Miller  v.  Laubach,  47  Pa.  St. 
\b4  ;  Mayor  v.  Appold,  42  Md.  456  ;  Waffle  v.  N.  Y.  C.  Ry.  Co.  53  N.  Y. 
11 ;  see  Tillotson  v.  Smith,  32  N,  H.  95. 

19  Xoonan  v.  Albany,  79  IS".  Y.  476  ;  Mayor  v.  Appold,  42  Md.  455  ; 
McCormick  v.  Horan,  81  N.  Y.  90. 

20  Tillotson  v.  Smith,  32  N.  H.  95  ;  Merritt  v.  Parker,  1  N.  J.  L.  462  ; 
see  Mayor  v.  Appold,  42  Md.  455 ;  compare  Noonau  v.  Albany,  79 
N.  Y.  475  ;  McCormick  ;-.  Horan,  81  N.  Y.  89. 

21  Messenger  v.  Pate,  42  Iowa,  446. 

22  Brown  v.  Maxwell,  6  Hill,  592  ;  Birdge  ?'.  C4ardiner.  19  Conn.  510  ; 
Waldron  v.  P.  S.  &  P.  Ry.  Co.  35  Mo.  42.5 ;  Beatty  r.  Giimore,  IC  Pa.  St. 
465 ;  Murray  v.  McShane,  52  Md.  217, 


123  STATES.  z  39 


CHAPTER   T. 

STATES,    COUNTIES,    CITIES,    ANT)  TOWNS. 

2  33.  States,  their  rights  to  sue. 

§  40.  States,  suits  against. 

§  41.  Counties,  suits  by. 

§  42.  Counties,  suits  against. 

I  43.  Citi3S;  suits  by. 

?  44.  Cities,  suits  against, 

?  45.  Towns,  suits  by. 

?  4S.  Towns,  suits  against. 

^39.  States.  —  The  right  of  States  to  sue  in  tbeir  ovni  cuurts 
Whenever  their  rights  are  invaded  is  an  incident  of  the  sover- 
eignty of  the  Stat3.i  When  no  exception  is  made  by  statute 
her  civil  actions  should  be  presented  in  the  same  manner,  and 
under  the  same  forms  of  remedy  as  individual  suitors. ^  A 
foreign  republic,  recognized  as  such  by  the  government  of  the 
United  States,  has  the  same  right  to  sue  in  the  courts  of  this 
State  as  a  foreign  monarch  or  corporation. ^  A  sister  State 
suing  in  the  courts  of  the  State  of  Kansas  will  be  treated  as  a 
corporation,  organized  under  the  laws  of  such  State. -^  When 
not  otherwise  provided  by  statute,  an  action  is  properly  main- 
tained by  a  Stato  in  its  own  name  in  pursuing  its  rights. »  A 
suit  brought  in  the  name  of  Tlw  People  of  the  State  of  Illinois 
for  the  use  of  C.  D.  to  recover  the  penalty  given  by  section  fifty 
and  fifty -one  of  the  Railway  Law  will  not  be  dismissed  because 
it  is  brought  to  the  use  of  an  individual ;  such  suit  is  brought  in 
the  name  of  T/ie  People,  and  the  words /wY/ie  use  of,  etc.,  will 
be  treated  as  surjDlusage.  The  use  of  the  name  of  the  State 
with  all  its  privileges,  in  prosecuting  individuals  for  the  bene- 
fit of  others,  should  not  be  tolerated. '  The  State,  no  less  than 
other  prosecutors,  must  appear  upon  the  face  of  the  record  to 
be  entitled  to  prosecute,  otherwise  the  proceedings  must  fail.^ 
A  civil  action  in  the  nature  of  a  writ  of  quo  icain^anto  to  test  the 


^39  Vv'HO  MAT  SUE   AND  BE   SUED.  124 

validity  of  an  election,  or  the  right  to  a  iDublic  office,  must  be 
brought  in  the  name  of  the  State  by  the  attorney-general,  and 
upon  the  relation  of  the  party  aggrieved.'*  When  an  official 
bond  is  given  in  the  name  of  the  State,  suit  thereon  should  be 
in  its  name.^'^  In  such  suits  when  a  relator  is  required  he  is 
the  real  party,  while  the  State  is  but  the  nominal  party  ;^^  and 
upon  his  death  the  action  abates,  unless  revived  in  the  manner 
provided  by  law.^^  Generally  when  a  bond  is  executed  to  the 
State  an  action  thereon  should  be  in  its  name  upon  the  relation 
of  the  person  interested,  but  if  it  is  not  made  to  appear  that 
the  State  is  a  trustee  of  an  express  trust,  or  has  some  interest, 
the  suit  cannot  be  maintained.!^  "When  an  officer  collects  fines 
for  breaches  of  the  penal  laws,  and  refuses  to  pay  over  to  the 
proper  person  or  agent  entitled  to  receive  the  same,  suit  there- 
for is  properly  brought  in  the  name  of  the  State. i*  The  State 
of  Nevada  is  the  proper  plaintiff  in  a  suit  for  delinquent  school 
taxes  under  section  thirtj'-five.  Act  March  20,  1865,  relating  to 
schools.!^ 

1  State  V.  Delesdemer,  7  Tex.  76 ;  State  v.  Grant,  10  Minn.  ;i9 ; 
United  States  r.  The  Queen,  11  Blatchf.  416. 

2  State  V.  Kroner,  2  Tex.  492  ;  see  State  v.  Battles,  3  Ohio  St.  309. 

3  Mexico  v.  De  Arangoiz,  5  Duer,  634  ;  see  King  of  Spain  v.  Oliver, 
2  Wash.  429. 

4  I  si  y  V.  Illinois,  23  Kan.  510  ;  see  also  United  States  v.  Graff,  67 
Barb.  ;  01. 

5  State  V.  Poulterer,  16  Cal.  532  ;  Wieson  v.  Castro,  31  C'al.  420 ; 
State  r.  Railroad  Co.  36  Ohio  St.  434 ;  State  v.  Brandish,  34  Vt.  419  ; 
Saint  V.  State,  68  Ind.  128  ;  Craft  v.  Jackson  Co.  5  Kan.  521  ;  State  v. 
Anderson,  5  Kan.  90  ;  State  v.  Curators  St.  Univ.  57  Mo.  178  ;  State  v. 
Saline  Co.  Ct.  51  Mo.  350  ;  Franklin  Whf.  Co.  v.  Portland,  67  Me.  46  ; 
People  V.  Supervisors,  50  Cal.  561. 

6  Railroad  Co.  v.  The  People,  91  111.  4.52  ;  compare  Duncan  v. 
Philpot,  64  N.  C.  480  ;  Korman  v.  Dunbar,  8  Jones,  317. 

7  Uiuted  States  v.  Union  Bank,  8  La.  An.  383  ;  People  v.  Pacheco, 
29  Cal.  210  ;  People  v.  Stratton,  25  Cal.  244  ;  State  v.  Klein,  8  Neb.  63  ; 
Commonwealth  v.  Fugate,  1  Mon.  2  ;  Salt  Lake  v.  Golding,  2  Utah, 
319  ;  State  r.  Railroad  Co.  32  Mo.  497. 

8  Atty.-Gen.  v.  Soule,  28  Mich.  155  ;  State  v.  Wilson,  63  Mo.  451. 

«T-^  £2""^^^'"''  ^'-  Catling,  81  X.  C.  293  ;  compare  Orvisad  r.  State,  20 
Wis.  2.^/  ;  contra,  McGrath  v.  The  People,  100  III.  465. 

10    Meier  v.  Lester,  21  Mo.  112  ;  Kelly  v.  The  State,  25  Ohio  St.  579. 
D^L  -^it^'j'-  The  State,  49  Ind.  52  ;  Commonwealth  v.  Teal,  14  Mon. 
B. .«  ;  Dishon  r.  State,  19  Ind.  255  ;  Owen  v.  State,  25  Ind.  107. 

12    McLaughlin  v.  Xeill,  3  Ired.  294. 


125  STATES.  §  40 

13  State  i\  "Wilson,  63  Mo,  451 ;  compare  Jackson  v.  Rounrls,  59  Ind. 
116  ;  Hopkins  v.  State,  53  Md.  510  ;  and  see  Sickles  v.  McManus,  26 
Xo.  2.3  :  Mitchell  v.  WUliams,  27  Mo.  400. 

14  Wisconsin  v.  Casej',  5  Wis.  322  ;  see  Duncan  v.  Philpot,  64  X.  C. 
439  ;  Xorman  c.  Dunbar,  S  Jones,  317. 

15  Stata  r.  First  Xatl.  Bank,  4  Nev.  491 ;  compare  Wisconsin  v. 
Casev.  5  Wis.  322  ;  Rogers  v.  Gibson,  15  Ind.  218  ;  Stale  v.  Earhart,  27 
Ind.  liO. 

^  43.  States,  suits  against.  — It  is  a  fund  imental  principle 
tliat  government  cannot  be  sued  except  hj  its  own  consent.^ 
No  State  can  pass  a  law  which  would  have  any  validity  for  mak- 
ing the  federal  government  suable  in  its  courts,  nor  can  the 
comptroller  of  currency  submit  the  rights  of  the  government  to 
litigation  in  any  court,  without  some  provision  of  law  author- 
ising him  to  do  so, 2  The  right  is  not  a  personal  privilege,  and 
is  not  waived  by  pleading  to  the  merits.^  The  United  States  is 
liable  to  an  action  in  the  court  of  chiims  for  money  of  an  indi- 
vidual which  has  been  fraudulently  received  by  its  agents  and 
paid  into  the  treasury;*  so,  also,  where  a  militaiy  officer 
impresses  a  wagon  train,  against  the  consent  of  the  owner,  into 
the  sei'vice  of  the  United  States,  an  impheei  promise  arises  on 
the  part  of  the  government  to  pay  for  the  service.^  When  the 
government  in  the  exercise  of  the  right  of  a  civil  corporation 
purchases  land  to  secure  a  debt,  the  aecidcnt  of  its  sovereignty 
in  other  functions  cannot  be  set  up  to  defeat  the  rights  of  others 
claiming  title  or  liens  upon  the  same  land.'^  A  State  cannot 
be  sued  in  its  own  courts  without  its  own  consent.'^  The 
right  to  sue  the  governor,  or  the  State,  is  a  matter  of  favor 
conferred  by  the  State,  in  derogation  of  that  immunity 
which  every  sovereign  enjoys,  the  right  should  be  con- 
strued strictly  and  be  extended  only  to  those  for  whose 
benefit  it  was  clearly  intended.*^  When  the  Constitution  pro- 
vides that  the  general  assembly  shall  direct  by  law  in  what 
manner  and  in  what  courts  suits  may  be  brought  against  the 
State,  in  that  manner  and  in  the  designated  courts  only  can 
the  action  be  prosecuted.^  And  in  case  the  "assembly"  fails 
to  designate  the  courts,  or  the  manner  of  bringing  the  suit,  the 
claimant  is  without  remedy  by  action.^"  There  is  no  distinc- 
tion between  suits  against  the  government  directly  and  suits 


^  41  WHO   MAY   SUE   AND   BE   SUED.  126 

against  its  ijropetty;!^  nor  can  the  State  be  brought  into  court 
indirectly  by  means  of  proceedings  against  its  olficers  or 
agents. i'-^  An  action  in  the  courts  of  the  United  States  against 
the  executive  officers  of  a  State  in  their  cffi';ial  capacity  is  in 
effect  a  suit  against  the  State,  and  as  such  is  prohibited  by  the 
12th  amendment  to  the  Constitution. 1^  The  mere  consent  of 
an  officer  of  the  State,  by  appearing  and  answering  in  its  name, 
will  not  bind  it  by  the  judgments  that  may  be  entered  in  the 
suit.^*  The  State  University  of  Iowa  is  not  a  coiporatiou,  but 
a  creature  of  the  legislature  ;  its  property  belongs  to  the  State> 
and  cannot  be  pursued  in  an  action  at  law.^^ 

1  The  Siren,  7  Wall.  153 ;  The  Davis,  10  Wall.  18  ;  Goldsmith  v. 
Rev.  Cutter,  6  Oreg.  252  ;  Briggs  v.  Light  Boats,  U  Allen,  162  ;  United 
States  V.  Clark,  8  Peters,  444  ;  Elliott  v.  Van  Voorst,  3  Wall.  Jr.  301. 

2  Case  v.  Terrell.  11  Wall.  190  ;  Carr  v.  United  States,  08  U.  S.  437  ; 
compare  Dunn  v.  E.  Co.  8  S.  C.  231. 

3  Goldsmith  v.  Rev.  Cutter,  6  Oreg.  253  ;  see  also  United  States  v. 
Clarke,  8  Peters,  44S  ;  Dunn.  v.  Railroad  Co.  8  S.  C.  231. 

4  U.  S.  V.  State  Bank,  96  U.  S.  85  ;  Bank  of  Boston,  10  Ct.  of  CI.  542. 

5  Mason  v.  United  States,  14  Ct.  of  CI.  5d  ;  see  also  Peck  v.  United 
States,  14  Ct.  of  CI.  113. 

6  Elliot  V.  Van  Voorst,  3  Wall.  Jr.  301  ;  see  Fifth  Xat.  Bank  v. 
Long,  7  Biss.  502. 

7  Ambler  v.  Auditor  Gen.  38  Mich.  750  ;  Langford  v.  King,  1  Mont. 
38  ;  Fisk  v.  Cuthbert,  2  Mont.  5J5  ;  People  v.  Talmage,  6  Cal.  2.57  ;  see 
Railroad  Co.  v.  Brown,  24  Minn.  575  ;  People  v.  Miles,  56  Cal.  401. 

8  Rose  V.  Govenor,  24  Tex.  504. 

9  Green  v.  Graham,  29  Ala.  61  ;  compare  Green  v.  State,  53  Miss. 
152  ;  fetuta  v.  Stout,  7  Neb.  101 ;  Bradford  v.  State,  7  Neb.  111. 

10  Turner  v.  State,  27  Ark.  337  ;  see  also  People  v.  Talmage  G  Cal. 
253  ;  Tate  v.  Salmon,  13  The  Reporter,  144, 

11  Miars  v.  Turnpike  Co.  11  Ohio,  274. 

12  State  V.  Burke,  12  The  Reporter,  590  ;  Tate  v.  Salmon,  13  The 
Reporter,  144  ;  Moore  v.  School  Trs.  19  111.  86  ;  Printup  v.  R.  Co.  45  Ga, 
367  ;  Green  v.  State,  53  Miss.  152  ;  Nougues  v.  Douglass.  7  Cal.  74 ; 
Railroad  Co.  v.  Randolph,  24  Tex.  329;  St.  Paul  &  Chi.  R.  Co.  v. 
Brown,  24  Minn.  573  ;  Ambler  v.  Auditor  Gen.  as  Mich.  750  ;  Weston 
V.  Dane,  51  Me.  464  ;  and  see  State  v.  Bank  of  Tenn.  5)  Tenn.  396  : 
Clements  v.  North  Carolina,  77  N.  C.  142  ;  People  v.  Miles.  56  Cal.  401 : 
State  V.  Graham,  23  La.  An.  402  ;  McCauley  v.  Kellogg,  2  Wood,  13. 

13  McCauley  v.  Kellogg,  2  Woods,  18. 

14  Dunn  v.  Railroad  Co.  8  S.  C.  231. 

^T^\.  Weary  v.  State  Univ.  42  Iowa,  336 ;  see  Regents  t-.  McConnell  5 
Neb.  •J23. 

g  41.  Counties,  suit3  "by. —At  common  law  counties  have 
no  inherent  right  to  sue,  but  derive  their  power  from  the  legis- 


127  COr>-TIES,    CITIES,   AND  TOWNS.  \  42 

lature,  and  must  pursue  tlieir  remedies  in  the  manner  bv  law 
prescribed.!  The  people  of  the  county  are  not  a  corporation, 
nor  are  they  recognized  in  law  as  capable  of  suing  or  being 
sued.^  Under  the  Constitution  of  Georgia  a  county  can  only 
maintain  an  action  in  its  own  name.*^  Suits  for  the  recovery  of 
school  money  arising  upon  an  official  bond  of  a  co-treasurer, 
given  to  the  Stato  for  the  safe  keeping  of  the  school  fund,  is 
properly  brought  i:i  the  name  of  the  State  upon  the  relation  of 
the  proper  county-,-'  all  ordinary  suits  for  the  recovery  of  the 
school  funds  of  a  county  are  properly  brought  in  its  name.^  In 
a  suit  upon  the  official  bond  of  a  county  officer,  if  it  i.i  alleged 
that  the  money  for  which  the  officer  is  in  default  belongs  to  the 
county,  the  action  is  properly  brought  in  its  name.''  Money 
paid  to  a  county  officer,  for  services  as  such,  and  to  which  he  is 
not  entitled,  may  be  recovered  back  by  the  county  by  suit  in 
it3  name.' 

1  Co.  of  McDonough  v.  Marliham.  19  111.  159  ,  Anderson  v.  State, 
23  miss,  474 ;  Halleubeck  r.  Hahn,  2  Xeb.  397  ;  Donaldson  v.  San 
3Ii^iiol  Cj.  1  Now  IMex.  2G4  ;  Goodenow  v.  Commrs.  11  ilinn.  41  ;  com- 
pare St.  Lake  Co.  v.  Golding,  2  Utah,  o24. 

2  Smith  V.  Xyers,  15  Cal.  U. 

3  Bennett  v.  Walker,  64  Ga.  330  ;  compare  Maury  Co.  v.  Lev.-L",  Co. 
1  Swan,  2  r) ;  Smith  v.  Myers,  15  Cal.  U  ;  Supervisors  v.  Hall,  42  Wis. 
63  ;  Co.  of  McDonough  i-.  Markheim,  ID  111.  150. 

4  State  V.  Sappington,  63  Mo.  455. 

5  Lafayette  Co.  v.  Hixon,  Ql  Mo.  .582  ;  Stat<3  v.  Sappington,  03  Mo. 
455  :  see  Barry  Co.  v.  iMcGlothlin,  19  Mo.  303  ;  compare  Shelby  Co.  v. 
Sicimond.s,  33  Iowa,  346. 

6  Mendocino  Co.  v.  Morris,  .32  Cal.  145  ;  Greenville  Co.  ".  Bunion,  9 
S.  C.  3  ;  S-cramento  v.  Bird,  31  Cal.  63  ;  State  v.  Cooper,  53  Miss.  624  ; 
compare  St.  Lake  Co.  v.  Goldlng,  2  Utah,  325  ;  People  r.  IngorsoU,  53 
X.  Y.  13. 

7  Grant  Co.  v.  Sels,  5  Oreg.  243 ;  see  People  v.  Ingersoll,  53  X.  Y.  13. 

I  42.  Countiss,  suito  against.  —  Counties  have  no  capacity 
independent  of  statute  of  being  sued ;  when  that  capacity  is 
conferred,  the  mode  pointed  out  must  be  strictly  pursued.  ^ 
^Yhen  there  ij  no  particular  mode  pointed  out  for  this  purpose, 
the  suit  may  bo  brought  in  the  usual  form  prescribed  i:i  other 
cases  for  like  demands.^  Under  statute  in  Georgia  a  county 
can  only  be  sued  in  its  coi'porate  name.^  When  the  statute 
prescribes  that  all  proceedings  against  a  county  in  its  corporate 


g  42  "WHO   MAY   SUE   A>'D   BE   SUED.  128 

capacity  shall  be  in  the  name  of  the  Board  of  Supervisor.^  of 
such  county,  suit  against  the  county  of cannot  be  main- 
tained.* The  action  must  be  against  the  Board  of  Supervisors, 
and  not  against  the  individual  members.^  When  the  board 
consists  of  three  members,  at  least  two  of  them  should  be  made 
defendants  in  a  suit  to  enjoin  the  board  from  purchasing  prop- 
erty for  the  use  of  the  county."^  An  action  at  law  lies  against  a 
new  county  in  favor  of  one  of  the  old  counties  from  which  it 
was  taken  for  its  pro  rata  share  of  the  esTisting  debt  of  the 
old  county.'  When  a  tax  sale  is  void,  the  county  is  liable  to 
i^c  holder  of  the  certificate  issued  on  such  sale  for  the  amount 
paid  ; «  but  unless  paid  into  the  treasury,  a  county  is  not  liable 
for  money  paid  to  a  county  treasurer  for  the  redemption  of 
lands  sold  for  taxes. «  It  is  not  liable  for  the  acts  of  its  Board 
of  Supervisors  in  erecting  a  bridge  over  a  navigable  stream, 
nor  for  any  consequences  arising  therefrom,^"  nor  for  failure 
to  keep  the  same  in  repair ;  ^^  is  not  liable  to  an  inmate  of  the 
county  hospital  for  injuries  sustained  by  reason  of  unskillful 
treatment  received  from  the  resident  physician,  nor  for  un- 
wholesome food  furnished  ;  ^-  not  liable  at  suit  of  a  private  per- 
son for  damages  occasioned  by  reason  of  the  erection  of  a  jail 
near  his  residence,  even  if  kept  in  so  filthy  a  condition  as  to 
become  a  nuisance  ;  ^^  not  liable  to  suit  upon  a  claim  which  has 
been  aiidited  and  allowed  without  reduction;  the  only  remedy 
is  mandamus. 1*  Is  liable  for  the  expense  of  boarding  and 
lodging  a  jury  empanneled  and  kept  together  in  a  capital  case 
by  order  of  the  court ;  ^^  to  a  physician  employed  by  the  coroner 
to  make  a  post  mortem  examination ;  ^^  but  is  not  liable  to  an 
attorney  appointed  by  the  court  to  defend  a  pauper  prisoner 
d'aring  a  criminal  prosecution ;  i'  nor  is  it  liable  to  one  who 
was  injured  thereby  for  negligence  of  its  ofdcers  in  leaving 
uncovered  a  large  opening  in  the  passage  of  the  court-house,  or 
in  failing  to  properly  guard  the  same,  even  though  plaintiff 
was  a  witness  and  brought  hence  under  process  of  the  court-^** 
A  county  must  furnish  a  jail  for  the  safe  keeping  of  prisoners, 
and  is  liable  if  it  does  not.'"-^ 

1    llock  Island  Co.  v.  (Steele,  "A  111.  ,544  ;  Schuyler  Co.  v.  Mercer  Co. 


129  COrXTIES,   CITIES,   AXD  TOWNS.  §  42 

4  GUm.  23  ;  Taylor  r.  Co.  of  Salt  Lake,  2  rtah,  409  ;  Anderson  r.  State, 
23  Miss.  473  ;  Hastings  r.  City  &  Co.  of  S.  F.  18  Cal.  58  ;  see  Beaman  v. 
Board  of  Police,  42  iliss.  250  ;  Sutton  v.  Dudley,  41  Miss.  239  :  Wood  v. 
Tipton  Co.  7  Baxt.  113  ;  compare  Boyce  v.  Supervisors,  20  Barb.  295  ; 
Taylor  v.  Mayor,  82  X.  Y.  24  ;  Donaldson  v.  San  Miguel  Co.  1  X.  Mex. 
265  ;  Covington  r.  Kinney,  45  Ala.  182 ;  Waitz  v.  Ormsbv  Co.  1  Xev. 
376 ;  Braham  v.  Supervisors,  54  Miss.  364 ;  AVard  v.  Hartford  Co.  12 
Conn.  404. 

2  Randolph  Co.'r.  Hutchings,  46  Ala.  401 ;  Covington  Co.  v.  Kinney, 
45  Ala.  182. 

3  Bennett  v.  Walker,  64  Ga.  330  ;  see  also  WOson  v.  Huntington,  7 
Watts  &  S.  197. 

4  County  of  Rock  Island  v.  Steele,  31  111.  544  ;  see  Green  v.  Ward- 
woU,  17  111.  279  ;  Gross  v.  Sioux  Co.  2  Dill.  511.  , 

5  Magee  v.  Cutler,  43  Barb.  260  ;  compare  Trinitv  Co.  v.  McCam- 
mon,25  Cal.  113  ;  Wild  r.  Supervisors,  9  How.  Pr.  316. 

6  Trinity  Co.  v.  McCammon,  25  Cal.  119  ;  see  also  Collins  v.  Hud- 
son, 54  Ga.  27. 

7  Chambers  Co.  v.  Lee  Co.  55  Ala.  536. 

8  Norton  v.  Supervisors,  13  Wis.  613. 

9  Eaton  v.  Board  of  Co.  Commrs.  11  Xeb.  229  ;  see  also  Onderdonk 
V.  Brooklyn,  31  Barb.  505. 

10  Larkin  r.  Saginaw,  11  Mich.  91 ;  Crowell  v.  Sonoma  Co.  25  Cal. 
315. 

11  Brabham  v.  Supervisors,  54  Miss.  364  ;  Seales  i'.  Ordinary,  41  Ga. 
226 ;  Huffman  v.  San  Joaquin  Co.  21  Cal.  429  ;  Kinsey  v.  Magistrates, 
8  Jones,  IS") ;  Wheatley  v.  Mercer,  9  Bush.  705  ;  compare  McCullom  r. 
Blk.  Hawk  Co.  21  Iowa,  413  ;  Soper  v.  Henry  Co.  26  Iowa,  269  ;  Co. 
Commrs.  v.  Duckett,  20  Md.  474  ;  also  Granger  v.  Pulaski  Co.  26  Ark. 
.39  ;  White  v.  Bond  Co.  58  111.  298  ;  Chicago  v.  McGinn.  51  111.  267  ;  com- 
pare Waltham  i\  Kemper,  55  111.  347  ;  Jefferson  Co.  v.  Arrghi,  51  Miss. 
670  ;  Askew  v.  Hale  Co.  54  Ala.  640  ;  Barbour  Co.  v.  Horn,  4S  Ala.  567  ; 
Smoot  V.  Wetumpka,24  Ala.  116  ;  contra.  State  v.  Supervisors,  41  WLs. 
32  ;  Humphrevs  /•.  Armstrong  Co.  56  Pa.  St.  207  ;  Penn  Township  ;-. 
Perrv  Co.  78  Pa.  St.  459  ;  Krause  v.  Davis  Co.  44  Iowa,  142  ;  Moreland 
V.  Mitchell  Co.  40  Iowa,  395  ;  House  v.  Commrs.  60  Ind.  581. 

12  Sherbourne  v.  Yuba  Co.  21  Cal.  114  ;  see  Fowle  v.  Com.  Council, 
3  Peters,  409  ;  compare  Hannon  v.  Co.  of  St.  Louis,  62  Mo.  314. 

13  Wehn  v.  Commrs.  5  Xeb.  497 ;  compare  Hannon  v.  Co.  of  St 
Louis,  62  Mo.  31.5. 

14  Covington  Co.  v.  Dunklin,  52  Ala.  28  ;  Brewer  v.  Otoe  Co.  1  Xeb. 
383  ;  Klein  v.  Supervisors,  54  Miss.  259  ;  Klein  v.  Supervisors,  51  ]*Ilss. 
878  ;  compare  Shirk  v.  Pulaski  Co.  4  Dill.  210  ;  Supervisors  v.  Ellis,  53 
X.  Y.  622  ;  S.  M.  Co.  v.  Lane  Co.  5  Oreg.  265. 

15  Commrs.  v.  Hall,  7  Watts,  290. 

16  AUeghenvr.  Shaw.  34  Pa.  St.  303 ;  see  also  Sherman  r.  Super- 
visors, 30  How.  Pr.  179  ;  Roberts  v.  Pottawatomie  Co.  10  Kan.  31 ; 
Commrs.  v.  Hall,  7  Watts,  290  ;  Commrs.  v.  Holman,  34  Ind.  257. 

17  Rosev  V.  MobUe  Co.  50  Ala.  7  ;  Lament  v.  Salabro,  49  Cal.  153 ; 
People  I'.  Supervisors,  78  X.  Y.  622  ;  People  v.  Supervisors.  2S  How. 
Pr.  23  ;  but  see  Gordon  v.  Commrs.  52  Ind.  324  ;  Carpenter  v.  Dane,  9 
Wis  276  ;  Weisbrod  v.  Supervisors,  20  Wis.  419. 

18  Commrs.  v.  Mighels,  7  Ohio  St.  113;  compare  Hollenbeck  v. 
Winnebago  Co.  95  111.  153  ;  and  see  Bigelow  v,  Randolph,  14  Gray,  543  ; 
Ward  V.  Hartford,  12  Conn,  406. 


g§   43-44  WHO   MAY   SUE  AXD  BE  SUED.  130 

19  Ransom  v.  Gentry  Co.  43  Mo.  542  ;  compare  Haygood  v.  Justices, 
20  Ga.  846  ;  Governor  v.  Justices,  19  Ga.  97 ;  James  v.  Lincoln  Co  5 
Neb.  30  ;  Board  v.  Board,  75  N.  C.  341. 

§  43.  Cities,  suits  by.  —  Au  incorporatad  city  need  not  sue 
in  the  name  of  the  inhabitants  of  the  city,  but  may  recover  in 
its  name  of  incorporation.^  An  action  upon  a  contract  made 
with  a  city  should  be  brought  in  its  name,  although  the 
promise  was  made  to  A.  B.  as  treasurer. 2  When  land  has  been 
dedicated  to  the  use  of  the  public,  an  action  of  ejectment  to 
recover  its  possession  may  properly  be  brought  in  the  name  of 
the  corporate  authorities  of  a  city  whose  inhabitants  constitute 
the  public.^  In  opening  and  improving  one  of  its  streets  a 
city  built  a  wall  to  sustain  the  street,  one  half  of  which  rested 
upon  the  land  of  defendant;  held,  that  the  city  could  not 
recover  from  defendant  one  half  the  cost  of  building  the 
same.-*  A  city  may  maintain  an  action  at  law  to  recover  taxes 
rightfully  levied  for  municipal  purposes  upon  the  property  of 
a  railroad  company,  even  when  it  is  not  expi'essly  so  provided 
by  law,  but  another  remedy  is  given. ^  A  municipal  coii^orar 
tion  cannot  maintain  a  bill  to  restrain  the  collection  of  a  tax 
levied  on  property  within  its  corporate  limits;  tax  payers  only 
can  maintain  the  action.*^  Upon  a  proper  showing  against  two 
persons  who  claim  the  same  office  at  the  same  time,  under 
antagonistic  apiDointments,  a  city  may  maintain  a  bill  in  the 
nature  of  a  bill  of  interpleader.'' 

1  Lowell  V.  Morse,  1  Met.  473. 

2  Tow_%o:k1  v.  Hoyle,  20  Conn.  5  ;  see  Boston  v.  SchaiTer,  9  Pick. 
41S  ;  compare  fealem  v.  Railroad  Co.  98  Mass.  442. 

3  Dummer  v.  Den,  20  N.  J.  L.  106  ;  Methodist  Ch.  r.  Hobokon,  33 
jST.  J.  L.  16  ;  H.  L.  tfe  Imp.  Co.  v.  Hoboken,  36  N.  J.  fj.  »J4  :  compare 
Xiqucs  I'.  Bujac,  7  La.  An.  .500. 

4  Western  Ry.  Co.  v,  Allegheny,  92  Pa.  St.  108. 

5  Burlington  v.  V..  &  M.  Ry.  Co.  41  Iowa.  139;  Dubuque  v.  111. 
Cent.  Ry.  Co.  3D  Iowa,  56  ;  Davenport  ?•.  Railroad  Co.  :iS  Iowa,  63:^ ; 
see  also  New  Orleans  v.  Griable,  9  La.  An.  562  ;  compare  Rochester  v. 
Rush,  80  N.  Y.  310. 

6  Waverly  v.  Auditor,  100  111.  .355. 

7  Mayor  v.  Flagg,  G  Abb.  Pr.  300. 

§  44.  Cities,  suits  against.  —  As  a  rule  a  city  is  not  liable  to 
be  sued  in  a  private  action  for  the  neglect  of  a  public  duty 


\ 


131  COUNTIES,  criTES,  Ayj)  To-vrxs.  ^  44 

imposed  Ly  law  for  the  benefit  of  the  public,  and  from  the  per- 
formance of  -which  it  derives  no  benefit  or  advantage,  unless 
such  action  is  authorized  by  express  statute,^  Yet,  if  it  elects 
to  a?t  in  the  performance  of  the  duty,  it  will  be  held  responsi- 
ble for  a  complete  and  perfect  execution  of  it.^  So,  if  the  city 
is  charged  with  the  duty  in  consieleration  of  valuable  privileges, 
if  it  derives  an  emolument  from  the  exercise  of  powers  con- 
ferred, it  is  liable  to  indemnify  an  individual  who  suffers  any 
special  injuiy  from  a  neglect  of  the  duty,  or  for  the  negligent 
or  unskillful  exercise  of  the  pDwers  by  its  agznts,  or  for  the 
ncgL'ct  of  a  duty  which  is  imposed  by  or  results  from  the  exer- 
cise of  them,  and  in  such  cases  the  ofiBcers  engaged  in  the 
execution  of  the  powers  are  to  be  regarded  as  the  agents  of 
such  ci.^y.^  If  the  powers  granted  are  conferred  for  public  pur- 
poses exclusively,  they  belong  to  the  corporate  body  in  its 
public,  political,  or  municipal  character ;  but  if  the  gi-ant  be  for 
private  advantage  and  emolument,  though  the  public  may 
derive  a  common  benefit  therefrom,  the  corporation,  quo  ad  hoc, 
is  to  be  regarded  as  a  private  company,  and  stands  upon  the 
same  footing  as  would  any  individual  or  boely  of  persons  upon 
whom  like  franchises  have  been  conferred.-*  Thus  in  absence 
of  express  statute  a  city  is  not  liable  to  private  action  for  fail- 
ure to  repair  public  streets.^  Nor  for  changing  the  grade.^ 
Nor  for  negligence  in  leaving  open  an  excavation  on  a  pubhc 
common,  unless  it  appears  that  the  common  is  used  by  the  city 
for  its  own  revenue  and  profit.*  It  is  not  liable  for  a  failure  to 
provide  sufficient  sewerage  for  each  and  every  part  of  the  city.^ 
Nor  for  the  defect,  or  want  of  efficiency  in  the  plan  of  drainage 
adopted ;  ^  but  is  liable  for  negligencs  in  construction  of  a 
sewer,  and  failure  to  keep  in  repair  and  free  from  obstruc- 
tions ;  ^^  and  must  so  use  it  that  it  shall  not  become  a  nuisance.i^ 
A  distinction  is  observed  by  the  authorities  between  the  control 
and  use  of  natural  streams  and  surface  water  ;  the  liability  in 
case  of  injury  resulting  from  ill-constructed  and  insufficient 
culverts  or  passage  ways  seems  to  be  greater  in  the  former 
than  in  the  latter  case,^^  jt  is  not  liable  for  unsafe  condition  of 
public  schoolhouse,  provided  under  a  duty  imposed  by  law.^^ 


g  44  VTEO  :may  sue  axd  be  sued.  132 

Wlien  a  city  is  authorized  to  erect  water  works  autl  collect 
revenue  from  the  exercise  of  powers  conferred  in  connection 
therewith,  it  is  liable,  as  any  other  corporation  would  be,  for  the 
negligent  exercise  of  the  powers  thus  conferred.''-*  A  city  is  net 
liable  for  the  negligence  or  tortious  acts  of  its  officers,  merely 
because  it  appointed  them  to  office  ;i^  but  for  the  negligent  prc- 
formance  of  a  mere  ministerial  act  or  duty  by  such  officer  in 
pursuance  of  his  general  authority  an  action  lies.^^  "\Miere  a 
city  wrongfully  takes  property  from  its  owner  for  the  use  of  a 
street,  ejectment  will  lie.^^  If  guo  warranto  is  brought  against 
a  single  officer  of  a  city,  the  corporation  is  not  thereby  made  a 
party.^*^  Unless  the  charter  of  an  incoi-porated  city,  or  a  gen- 
eral law  prescribes  the  mode  and  the  persons  by  whom  its  con- 
tracts are  to  be  made,  any  legal  mode  is  sufficient ;  '^  but  where 
the  officers  of  such  city  fail  to  follow  the  strict  requii-ements  of 
a  statute  the  corporation  is  not  bound,  and  a  subsequent  ratiii- 
cation  will  not  make  valid  an  unlawful  act  without  the  sco^^e  of 
corporate  authority. 2"  A  subordinate  department  for  whom 
work  has  been  done,  and  which  has  certified  to  the  correctness 
of  the  charge,  should  not  be  j oined  as  a  party  defenelant. ^'  When 
materials  are  furnished  a  city  at  its  instance,  the  use  to  which 
they  are  applied  cannot  be  consielered  as  a  defense  to  an  action 
for  their  price. 22  Where  an  assessment  was  made  for  municipal 
improvement  and  paid,  and  subsequently  it  was  set  aside  and  a 
reassessment  made  for  a  less  sum,  an  action  will  lie  to  recover 
the  eliflference.^s  So  if  paid  under  an  illegal  ordinance,'-^*  or 
assessment.25  Generally  an  action  against  a  city  should  be 
brought  in  the  courts  of  the  county  where  it  is  situated. ^6 

1  Detroit  ?-.  Blackeby,  21  INEich.  lOo  ;  Hewiston  r.  New  Haven,  37 
Conn.  -481  ;  Hill  v.  Boston.  122  Mass.  345  ;  Hannon  r.  fet.  Louis,  62  Mo. 
319  ;  Richmond  v.  Long,  17  Gratt.  383:  Hyde  v.  Jamaica,  27  Vt.  457  : 
State  V.  Burlington,  S6  Vt.  524  ;  Chidsev  v.  Canton,  17  Conn.  478  ;  Tav- 
lor  V.  Peckham,  8  R.  I.  352  :  Winbigler  v.  Los  Angeles,  45  Cal.  3*7 ; 
Mitchell  V.  Rockland,  52  Me.  110  ;  Union  v.  Durkes,  38  X.  J.  L.  22  ;  com- 
pare Eastman  v.  Meredith,  36  X.  H.  296;  Roches^^er  W.  L  Co.  r. 
Rochester,  3  X.  T.  466  ;  Weet  ?•.  Brockport,  16  X.  Y.  172  ;  Barnes  v. 
Dist.  of  Columbia,  91  U.  S.  540;  Meares  v.  Wilmington.  0  Ired.  77, 
Smoot  V.  Wetumpka,:24  Aia.  127  :  Robbins  r.  Chicago,  4  Wall.  670. 

2  Mayor  v.  Furze,  3  Hill.  615  :  Strader  v.  Cincinnati,  Handv,  44S  ; 
Hannon  r.  St.  Louis.  62  Mo.  317  :  Mayor  v.  Thompson.  2!)  Ark.  .573  ;  and 
S^P  Li-Jl^  r^ock  '■•  Willis,  27  Ark.  576  ;  compare  Eastman  v.  :kreredith, 
c6  X.  H.  300  ;  Rochester  W.  L.  Co.  v.  Rochester,  3  X.  Y.  467 ;  Yv^ec-t  v. 


133  cou>-TiES,  crrrzs,  .vxd  to-^v^ns.  ^  44 

Brockport,  16  X.  Y.  172  ;  Clemence  r.  Auburn,  63  X.  Y.  SUd ;  Meares 
V.  Wilmiugton,  9  Ired.  77 ;  Mitchell  v.  Rockland,  52  Mo.  123  ;  and 
authorities  previous  note. 

3  Aldrieh  ?•.  Tripp,  11  R.  I.  142  ;  generallv  Oliver  v.  Worcester, 
102  Mass.  502  ;  Petersburg  v.  Applegarth,  28  Gratt.  M3 ;  W.  S.  F.  Soc  v 
Phuideiphia,  31  Pa.  St.  17S ;  Bailey  r.  Mayor.  3  Hill,  539  ;  see  Weight- 
man  V.  Washington,  1  Black,  50  :  Smoot  r.  Wetumpka,  24  Ala.  121. 

4  Bailey  v.  Mayor,  3  Hill,  539 :  Oliver  v.  Worcester,  102  Miss  49D  ; 
see  Petersburg  v.  Applegarth,  2S  Gratt.  343;  Richmond  r.  Lo::g.  17 
Grart.  3S] ;  V\\  S.  F.  Soc.  r.  Phllidelphia,  31  Pa.  St.  183  :  MaxmUlian  v. 
Mayor,  62  X.  Y.  1G3  ;  Smoot  v.  Wetumpka,  24  Ala.  121. 

5  Taylor  r.  Peckham,  8  R.  I.  .3.50 ;  Detroit  v.  Blackeby,  21  ilich. 
116;  generally  Lansing  v.  Doolau,  37  Mich.  153  ;  Ciiidsev  v.  Canton,  17 
Conn.  47^;  Bloijett  r.  Boston.  8  Allen,  238;  Mower  r.  Leicester.  9 
Mass.  25 J :  Reed  v.  Belfast,  20  Me.  243  ;  Stinson  v.  Gardiner,  42  Mo.  252 ; 
Pray  v.  Mayor,  ?2  X.  J.  L.  3  5  ;  Bell  v.  West  Point,  51  :Miss.  2S3  ;  com- 
pare Durant  V.  Palmer,  2J  X.  J.  L.  51-3  ;  Barnes  r.  Di.st.  of  Columbia, 
91  U.  S.  543 ;  Weightman  r.  Washington,  1  Black,  51 ;  Smoot  v.  Wet- 
umpka, 24  Ala.  117 :  Carpenter  v.  Cahoes.  81  X.  Y.  24 ;  Sewall  i\ 
Cahoes,  75  X.  Y.  40 ;  Cleveland  v.  St.  Paul,  18  Minn.  28G ;  Moore  v. 
Minneapolis,  19  Minn.  30;  Furncll  v.  St.  Paul,  20  Minn.  119  ;  Hatch 
V.  Mavor.  82  X.  Y.  433 ;  Grove  v.  Fort  Wayne,  45  Ind.  429 ;  Chicago  v. 
Brophy,  79  111.  278. 

6  Pontiac  v.  Carter,  32  Mich.  165  ;  Lee  v.  ilinneapolis,  22  Minn.  13 ; 
Denman  v.  Jackson\-illo,  13  Fla.  54S  ;  Union  v.  Durkes,  38  X.  J.  L.  22  ; 
Mayor  r.  Willison,  50  Md.  144  :  but  see  Crawford  v.  Delaware,  7  Ohio 
St.  470;  compare  Meares  f.  Wilmington,  9  Ired.  76;  Youngstown  v. 
Moore,  30  Ohio  St.  143 ;  Cincianati  v.  Penny.  21  Ohio  St.  507 ;  compare 
authorities,  2  71. 

7  Oliver  v.  Worcester,  102  Mass.  502  ;  see  also  Pittsburgh  v.  Grier. 
22  Pa.  St.  63. 

8  Mills  V.  Brooklyn,  32  X.  Y.  495  ;  Little  Rock  v.  Willis,  27  Ark. 
577  ;  Carr  v.  Xorth  Liberties.  35  Pa.  St.  327  ;  Lynch  v.  Mayor,  76  X.  Y. 
62;  compare  Aurora  v.  Reed,  57111.  30. 

9  Child  V.  Boston,  4  Allen,  51 ;  Little  Rock  v,  Willis,  27  Ark.  577 ; 
see  Von  Pelt  i\  Davenport,  42  Iowa,  313;  compare  Rochester  W.  L. 
Co.  r.  Rochester,  3  X.  Y.  4G5. 

■  10  Mavor  v.  Furze,  3  Hill,  614  ;  Lord  v.  Mayor.  5  X.  Y.  374  ;  Xims  i'. 
Mavor,  5J  X.  Y.  503 ;  Child  v.  Boston,  4  Alleii,  5;3;  Emery  v.  Lo%vell, 
104  Mass.  13 ;  Merrifield  v.  Worcester,  110  Mass.  221  ;  Clark  v.  Peck- 
ham,  9  R.  I.  472  :  Simmer  v.  St.  Paul,  23  Minn.  40) ;  Banton  v.  Syra- 
curo,  :>3  X.  Y.  51 ;  compare  Cincinnati  '•.  Penny,  21  Ohio  St.  507 ;  and  see 
GUman  v.  Laconia,  55  X.  H.  130  ;  McCarthy  v.  Syracuse,  46  X.  Y.  196. 

11  Clark  r.  Peckham,  9  R.  I.  466 ;  Van  Pelt  v.  Davenport,  42  Iowa, 
311;  Proprietors  etc.  r.  Lov.-ell,  7  Grav,  225;  Haskell  v.  Xew  Bed- 
ford, lOS  Mass.  212  ;  Jacksonville  v.  Lanibert.  62  111.  520. 

12  Mavor  v.  Thompson,  29  Ark.  574 ;  Little  Rock  v.  Willis,  27  Ark. 
577;  Rochester  W.  S.  Co.  v.  Rochester,  3  X.  Y.  460;  McCluro  r.  R.^d 
Wing.  23  Minn.  100;  see  Van  Pell  r.  Davenport,  42  Iowa,  313;  com- 
pare Sellick  V.  Hall,  47  Conn.  270 ;  also  compare  Wheeler  v.  Worcer- 
ter,  10  Allen,  600;  Parker  v.  Lowell,  11  Grav,  357;  and  see  Mayor  r. 
Willison,  50  3Td.  150  ;  Oilman  v,  Laconia,  55  X.  H.  130. 

13  Hill  V.  Boston,  122  Mass.  ^U ;  compare  Finch  v.  Board  of  Educa- 
tion, 30  Ohio  St.  40  ;  Basset-  v.  Fish,  75  X.  Y.  310. 

14  Aldrieh  v.  Tripp,  11  R.  I.  143  ;  Bailey  7-.  Mayor.  3  Hill.  530  ;  com- 
pare Brooks  V.  Som'erville,  106  Mas^;.  274  ;  Weightman  v.  V\'ashington, 
1  Black,  40 ;  Seaman  v.  Mayor,  80  X.  Y.  242. 

Parties  - 12 


^  45  T/HG   MAY  SrE   AKU  BE  SUED.  134 

15  Wheeler  v.  Cincinnati,  19  Ohio  St.  21;  Buttxick  v.  Lowell,  1 
Allen,  173  ;  HaflFord  v.  New  Bedford,  16  Oray,  302  :  Earner  v.  Lowell, 
98  Mass.  671 ;  see  Aldrich  v.  Tripp,  11  R.  I.  143. 

16  Kobs  V.  Minneapolis,  22  Minn.  161;  Tlmj-er  v.  Boston,  i:j  Pick. 
51} ;  Simmer  v.  St.  Paul,  23  Minn.  409  ;  and  compare  Morris  v.  Mayor, 
44Md.  607. 

17  Armstrong. I).  St.  Louis,  3  Mo.  App.  104;  Hammer  Slough  r. 
Kansas  City,  57  Mo.  221 ;  and  see  M.  E.  Church  v.  Iloboken,  :.3  Is.  J. 
Eq.  16. 

IS    Scrafford  r-.  Gladwin,  41  Mich.  n.>5. 

19  Selma  v.  Mullen,  4G  Ala.  4:5. 

20  Smith  v.  aSTewburgh,  77  N.  Y.  186;  see  Cbwen  v.  "West  Troy,  43 
Barb.  52  ;  McDonald  v.  Mayor,  63  IS".  Y.  26 ;  Nelson  v.  Mayor,  63  N.  V. 
535  ;  (Jas  Co.  v.  San  Francisco,  9  CjiI.  467 ;  Argenti  v.  San  Francisco, 
16  Cal.  263  ;  McCoy  v.  Briant,  53  Cal.  250. 

21  Dock  Co.  V.  Mayor,  8  Ilun,  247. 

22  Bigelow  v.  Perthamboy,  25  N.  J.  L.  301  ;  compare  Huntington  v. 
Da3',  £5  Ind.  7. 

23  Mayor  v.  Green,  42  N.  J.  L.  627. 

24  Leonar«l  v.  Canton,  S5  Miss.  191  ;  Callaway  v.  Mayor,  43  Ga..:)10  ; 
and  see  Union  Steamboat  Co.  xk  Buffalo,  82  N.  Y.  :i55  ;  Davenport  v. 
Elizabeth,  41  N.  J.  Eq.  363. 

25  Nickodemus  v.  East  Saginaw,  25  Mich.  45D;  Union  Steamboat 
eo.  V.  Buffalo,  82  N.  Y.  355  ;  Davenport  v.  Elizabeth,  41  N.  J.  L.  :J6:i 

26  Oil  City  v.  McAboy,  74  Pa.  St.  251. 


I  45.  Towns,  suits  "by.  — Towns  being  creatures  of  the 
statute  must  sue  in  tlio  manner  therein  provided.''  The  stat- 
ute providing  that  certain  actions  by  or  in  behalf  of  towns 
may  bo  brought  by  the  supervisors  of  tlie  town  by  their  name 
of  otSce  means  the  supervisors  of  the  town,  eo  nomine,  with- 
out the  use  of  their  personal  name ;  ^  that  is  but  another  way  of 
designating  the  town  itself  as  plaintiff  in  the  action,  and  the 
action,  being  in  the  right  of  the  town  only,  could  not  be  affected 
by  a  change  of  officers.^  If  the  action  were  brought  in  the 
name  of  the  town,  probably  its  right  to  sue  in  that  capacity 
would  be  sustained.*  Thus  an  action  to  recover  expenses 
incurred  by  the  towii  of  A.  in  aid  of  a  pauper,  whoso  settle- 
ment h  in  the  town  of  X.,  held  properly  entitled  Town  of  A.  v. 
etc.  ;5  iji^it  an  action  to  recover  the  penalty  for  bringing  into, 
and  leaving  in  the  town  a  pauper,  with  the  intent  to  charge  the 
town  with  her  support,  she  not  being  lawfully  settled  therein, 
cannot  be  maintained  in  the  name  of  the  town.'^  Where  a 
bond  was  given  to  the  town  of  A.,  conditioned  to  save  it  harm- 


135  COUNTIES,    CITIES,    AXD  TO^VX^.  ^  15 

less  from  expanse,  for  support  of  a  bastard  child,  tlic  town 
being  subsequently  divided,  and  the  bastard's  settlement  being 
ia  the  new  town,  an  action  was  properly  brought  thereon  in  the 
name  of  A.  for  the  benefit  of  the  new  town. '  Upon  a  bond  to 
the  State  for  the  use  of  the  town  of  N.,  no  action  lies  in  the 
name  of  the  town  ;  ^  but  when  a  town  officer  holds  it.>  money, 
and  refuses  to  pay  it  over  to  his  successor,  ho  claiming  it  as  his 
own,  suit  therefor  may  be  maintained  in  the  name  of  the  town, 
indepandently  of  its  remedy  upon  his  official  bond.^  So  a  town 
may  sue  in  its  own  namo  on  a  contract  made  to  an  agent  for  its 
benefit ;  ^^  may  maintain  an  action  for  the  obstruction  of  pub- 
lic highways  within  its  limits  ;  may  under  statute  maintain  an 
action  against  rioters  for  their  destruction  of  property,  for 
Avhich  the  town  has  paid  the  owner,  although  paid  in  pursuance 
of  an  award,  and  without  suit  at  law.^-  A  town  being  author- 
ized by  statute  to  sell  the  right  of  taking  fish  from  the  streams 
within  i  s  limits  may  maintain  an  action  to  recover  the  pur- 
chase prieeJ'* 

1  Griggs  V.  Griggs.  66  Barb.  237  :  Cairnes  r.  O'Bleness,  40  ^V"is.  475  ; 
^'ri?gs  T'.  Griggs.  5G  Is".  V.  oOS  ;  see  West  Bend  v.  Munch  '"^  Iowa,  133 ; 
Sturbriclge  v.  Wiuslow,  21  Pick.  S9. 

2  Cairnes  i\  O'Bleness,  40  Wis.  475  ;  Sni>ervisors  z\  Kirbv,  25  Wis. 
490 :  compare  Griggs  v.  Griggs,  56  X.  Y.  506 ;  Same  Case,  66  Barb.  297  ; 
contra,  Super\isors r.  Stimson,  4  Hill,  136 ;  Gould  r.  Glass,  19  Barb.  1^. 

3  La  Crosse  i\  Melrose,  22  Wis.  462  ;  Cairnes  v.  O'BIeuess.  40  Wis. 
475;  Supervisors  f.  Stimson,  4  Hill,  137. 

4  Pine  Valley  v.  Unity,  40  Wis.  635  ;  Cairnes  v.  O'Bleness.  40  Wis. 
475 ;  see  La  Crosse  v.  Melrose,  22  Wis.  462  ;  compare  Griggs  r.  Griggs, 
66  Barb.  297 ;  Same  Case,  56  X.  V.  506 ;  contra,  West  Bend  v.  Munch, 
52  Iowa,  133. 

5  Pine  A'alley  v.  Unitv.  40  ^Vis.  685;  see  La  Crosse  v.  Melrose,  22 
Wis.  462. 

6  Sturbridge  r.  WmisIow,  21  Pick.  S4;  compare  iUton  r.  Welsh, 
9  Pick.  90. 

7  East  Hartford  v.  Hunn,  29  Conn.  506;  see  also  People  r.  Had- 
dock, 12  Wend.  478. 

8  Northampton  i:  Zlwell,  4  Gray,  82:  g^enerally  see  Montville  r. 
Haughton,  7  Conn.  547;  Cairnes  v.  O'Bleness,  40  Wis.  475, 

9  Blanchard  r.  La  Salle,  99  111.  283. 

10  Garland  v.  Revnolds,  20  Me.  46 ;  and  see  Newcastle  v.  Bellard,  3 
Me.  371 ;  Aug^usta  v.  Leadbetter,  16  Me.  47. 

11  Laconia  v.  Oilman,  55  N.  H.  1'2S  ;  Troy  v.  Railroad  Co.  23  X.  H. 
IW  ;  see  also  Menasha  v.  Steam  Tug,  26  Wis.  536. 

12  Hanover  i\  Dewey,  13  The  Reporter,  143. 


2  46  WHO  :iIAY  SUE  AND  Ei:  srED.  1S6 

la  \VtitPrto\\'n  V.  ^Vllit,e,  L)  ^-luss.  47;);  ICastliam  v.  Aii<]{-:-s():i,  1U) 
Mass.  .")•_'!). 

^  46.  Towns,  suits  against.  —  An  action  against  a  town 
should  be  against  it  in  its  coi-porate  namo;^  not  being  incor- 
porated suit  should  be  against  its  trustees,  and  their  individual 
names  should  bo  set  out  in  the  record."'^  When  money  has 
been  received  by  a  town  for  the  purchase  price  of  bonds,  or 
other  unauthorized  paper,  issued  by  the  town  for  purposes 
of  raising  money,  an  action  will  lie  to  recover  it  back  as  for 
money  hael  and  received;-'  but  v»dicn  the  bonds  have  been 
issiied  in  piirsuancc  of  statutory  enactment,  they  constitute  a 
valid  claim  against  the  town,  for  the  payment  of  which  it  is 
bound  to  provide.  They  arc  liquidated  demands,  and  suit 
may  be  commcnceel  upon  them  to  enforce  their  payment.*  An 
action  will  lie  against  a  town  upon  a  judgment,  even  though  a 
portion  of  it  had  been  paiel  by  individual  inhabitants  under  an 
assessment  made  in  pursuance  of  statute,  which  cxempteel  sucJi 
inhabitants  so  paying  from  further  liability  thereon,^  Public 
property  of  the  city  of  A.  was  situated,  assessed,  and  taxed  in 
the  town  of  X.,  the  tax  was  paid  under  protest,  and  divided 
between  the  State,  county,  and  town,  each  receiving  its  pro 
rata  sliare ;  although  the  tax  is  illegal,  an  action  will  not  lie 
against  the  town  to  recover  the  amount  paid,  or  any  part 
thereof.'^  Where  a  town  set  apart  a  fund  for  the  payment  of 
a  certain  class  of  claims,  and  subsequently  was  divided  into 
two  towns,  after  which  the  fund  was  divided  between  said  towns 
proportionately,  held,  in  an  action  by  one  of  the  claimants  to 
recover  his  share  that  the  action  should  be  brought  against 
each  town  for  the  amount  it  had  received,  and  not  against  both 
jointly,^  To  render  a  town  liable  for  services  of  a  physician 
in  tending  small-pox  patients,  an  express  contract  with  the 
proper  town  e)fficers  must  be  shown. »  A  town  in  its  corporate 
capacity  has  no  control  over  highways,  and  independent  of 
statntoiy  enactment  is  not  liable  for  the  negligence  of  its 
oftic'-rs  in  failing  to  keep  the  highways  and  bridges  within  its 
limitrt  in  re  pair. «  Even  an  indictment  will  not  lie  against 
its  officers  for  failure  to  repair  bridges,  unless  it  is  expressly 


137  COUNTIES,    CITIES,    XSD   TOW-^S.  ^    46 

averred  that  they  had  funds ;  i"  nor  can  they  be  compi-lled  by 
mandamus  to  rebuild  a  bridge  until  thty  are  piovided  with 
funds.  1^  A  distinction  is  observed  by  the  authorities  l>etween 
the  liability  of  an  incorporated  village  for  the  neglect  of  its 
officers  to  repair  streets  within  its  limits  and  the  lialnlity  of  a 
town  for  the  same  defects,  the  former  being  htld  liable  inde- 
pendent of  statutory  enactment,  the  latter  not;  the  distinction 
seems  to  be  well  settled,  but  the  reason  lost  in  mist.i''^  When 
a  street  has  been  laid  out  through  lands  of  a  private  owner 
with  his  assent,  a  village  will  be  liable  for  the  acts  of  its  tiiistees 
in  proceeding  to  open  it  without  his  assent,  provided  the 
ti-ustees  act  within  the  scop3  of  their  general  authority,  and 
with  an  honest  desire  to  obtain  a  lawful  benefit  for  the  public, 
not  knowing  at  the  time  that  their  acts  were  unlawful.'^  In 
Ohio  the  courts  hold  that  the  owner  of  an  unimproved  lot  can- 
not recover  damages  from  the  corporation  (a  village)  for  cut- 
ting down,  filling,  or  ditching  the  street  abutting  on  his  lot. 
If  he  makes  improvements  and -the  grade  of  the  street  has  not 
been  established,  ho  cannot  recover,  if  by  the  exercise  of 
ordinary  care  the  grade  could  have  been  anticipated ;  but  if 
the  gi*ade  has  been  established  l;y  the  corporation,  and  he 
improves  the  lot  with  a  view  to  the  established  grad--,  and  the 
same  is  subsequently  changed,  to  his  injury,  he  may  recover. ^^ 
The  same  rule  seems  to  obtain  there  with  reference  to  the  lia- 
bility or  towns  for  the  same  acts.i^  A  town  is  not  liable  for  the 
neglect  of  its  officers  while  grading  a  street  in  failing  to  pro- 
^'ide  a  channel  for  the  drainagj  of  surface  water ; '"  nor  is  it 
liable,  independent  of  statute,  in  a  private  actian,  for  an  injury 
to  a  person  resulting  from  the  floor  of  a  town  house  giving 
way  by  reason  of  its  faulty  construction. ^^  A  town  must  be  a 
party  defendant  to  a  bill  in  equity  to  restrain  its  treasurer 
fiom  paying  out  money  voted  at  a  legal  meeting  of  the  town 
for  illegal  purposes.^**  An  action  against  a  school  district 
should  be  against  the  district  in  its  corporate  name, ''•'and  not 
against  the  trustees  individually. "^  A  teacher  performing  ser- 
vices for  a  school  district,  which  is  after  consolidati\l  with  a 
now  district,  which  takes  all  the  property,  rights,  and  assets  of 


g  46  WHO  31IAY  SrE   AND  BE   SUED.  138 

the  former,  may  recover  from  the  latter  the  vahie  of  his  ser- 
vices.-' When  a  school  district  tax  has  been  illegally  assessed 
and  collected,  the  remedy  is  again  t  the  district,^'-^  and  not 
against  the  town ;  '^  hut  when  a  town  collects  school  money 
from  the  issue  of  liquor  licenses,  which  money  when  collected 
belongs  to  the  county  school  fund,  an  action  will  lie  against  it 
to  recover  the  same.^^  When  the  duty  of  providing  school- 
houses  is  imposed  by  a  general  law  upon  a  school  district,  it  is 
not  liable,  independent  of  statutory  enactment,  for  injuries 
sustaint  d  by  a  pupil  by  reason  of  the  defective  condition  of  the 
schoolhonso,"^^  nor  for  the  defective  condition  of  the  yard 
surrounding  the  same.'-"" 

1  Grisgs  r.  Griggs,  66  Barb.  298  ;  Pine  Valley  v.  ITnity,  40  Wis.  6S5  ; 
see  also  Wilson  v.  Trustees,  168  Ohio,  180  ;  Duanesburgh  ?■.  Jenkins, 
40  Barb.  ."jTU  ;  and  compare  Cushing  v.  .Siouglaton,  6  Cush.  3'Jl. 

2  Lexington  r.  M'Connell,  3  Marsh.  A.  K.  1032. 

3  Parsons  ?'.  Monmouth,  70  Me.  26o;  and  see  Gauso  v.  C'itv  of 
Clarksville,  5  Dill.  163  ;  Paul  v.  Ivenosha,  22  Wis.  272  ;  Mayor  v.  Kay, 
10  Wall.  48-1. 

4  Marsh  v.  Little  Valley,  64  X.  Y.  115  ;  Brown  v.  Canton,  4  Lans. 
403  ;  and  see  Hathaway  v.  Homer,  .5  Lans.  271. 

5  Littefleld  v.  Greenfield,  69  Me.  8S  ;  and  see  Spencer  v.  Brighton, 
40  Me.  :t2H  ;  compare  Beers  v.  Borsford,  3  Dav,  165  ;  Nelson  v.  Milford, 
7  Pick.  22. 

6  Bochester  r.  Rush,  80  X.  Y.  310  ;  and  see  Lorillard  v.  Monroe,  U 
N.  Y.  3:i2  ;  but  compare  Hurley  v.  Texas,  20  Wis.  63G. 

7  Collins  V.  Burlington,  4-1  Vt,  19. 

S    Cliilds  V.  Phillips,  45  Me.  40D  ;  and  see  Boothby  v.  Troy,  43  Me. 

9  Morey  r.  Newfane,  8  Barb.  651;  People  v.  Town  Auditors,  74 
JS.  \  .  316  ;  People  v.  Town  Auditors,  75  N.  Y,  319  ;  Mower  v.  Lances- 
ter,  9  Mass.  250  ;  Oliver  ■?-.  Worcester,  102  Mass.  499;  also  Beed  r.  Bel- 
fast.-0  Me.  2-ls;  Chidsey  v.  Canton  17  Conn.  478;  see  also  1  oung  r. 
Conimissioners,  2  Nott<fe  McC.  537  ;  contra,  Wheeler  v.  Trov,  20  K.  H. 
i-.  V^^TT 'f.r.r-  i'ls'^on,o7:N.  H.  28  ;  compare  Woodman  v.  Nottingham, 
4^)  ^.  IL  .{91 ;  Gilman  v.  Laconia.  55  JST.  H.  130  :  Weed  v.  Greenwich,  45 
Conn,  isi,  ' 

10  People  r.  Adsit,  2  Hill,  G19;  Morey  v.  Newfane,  8  Barb.  C50 ; 
GarJnigliouso  v.  Jacobs,  2j  N.  Y,  .303. 

o-.U'  '^■'".Pji'  •»;.  Commissioners,  7  Wend.  475 ;  Garlinghouse  i.  Jacobs, 
N  Y  116      ■      ^''^^'  ''•  ^«^^'^^i»e,  8  Barb.  650  ;  Hover  v.  Barkhoof,  44 

iv'^"v-^n.a"^w-  ^strict  of  Columbia,  91  V.  S.  552 ;  Conrad  v.  Ithica,  IG 
S;rH^o.'-^^\'^'SP'-  ^rockport  16  N.  Y.  162;  Ryatt  v.  Bondout,  44 
^r^  •  o  V  ^r?*^"^  ';;,^"¥  crystal,  27  Minn.  243  ;  compare  Wheeler  v. 
Troy,  2(1  N.  H.  7j  ;  Elliott  v.  Lisbon,  ,57  N.  H.  28. 

13  Squires  v.  Menah,  24  Wis.  .591  ;  and  see  Lee  v.  Sandy  Hill,  40 
N.  ^  .  44,  ;  Tluiyer  v.  Boston,  I'J  Pick.  515, 


183  COrXTIES,    CITIES,    AXD  TOWNS.  \  46 

14  Crawford  v.  Dolcnvaro,  7  Ohio  St.  -170  ;  seo  also  Cincinnati  v. 
Penny,  21  Ohio  St.  507  ;  Youngtown  v.  Moore, :«)  Ohio  St.  1+4  :  coni- 
piire  Clemjnce  v.  Auburn,  GO  X.  Y.  *«  ;  Kmlcliffi-  v.  IJrnoklyn,  4 
Oomst.  197  ;  In  rcFurman,  17  Wend.  6GG  ;  In  re  Brooklyn, 7:}  X,  Y.  182. 

15  Akron  v.  McComb,  IS  Ohio,  221);  McComb  v.  Akron,  15  Ohio. 
473;  compare  Goszler  v.  Georgetown,  6  Wheat.  5:):{ ;  see  authoriiicH 
supra,  and  I  70  ;  also  Meares  v.  Wilmington,  9  Ired.  7G. 

16  Gould  r.  Booth,  03  N.  Y".  63  ;  and  see  Mills  v.  Brooklvn,  .32  N.  V. 
493  ;  Parks  v.  Xowburyport,  10  Gray,  2) ;  but  comp  ir"  (;ilmrin  v.  I^. 
conia,  55  N.  H.  130  ;  Lawrence  v.  Fairhaven,  5  Grav,  110  ;  Anthony  v. 
Adams,  1  Met.  234. 

17  Eastman  v.  Meredith,  36  X.  H.  2SS ;  and  compare  IIlll  v.  Bos- 
ton, 122  Mass.  344  ;  Finch  r.  Board  of  Erlucatiou,  ;:0  Ohio  St.  49. 

18  Allen  v.  Turner,  11  Gray,  436, 

19  Carimichael  v.  Lawrence,  47  Ind.  .557. 

20  Sproul  V,  Smith,  40  N.  Y.  316 ;  see  also  Bas.sett  v.  FIsli.  75  X.  Y. 
314. 

21  Sproul  V,  Smith,  40  X.  J.  L.  31.5. 

22  Bacon  v.  School  District,  97  Mass,  424  ;  Ellis  v.  Scliool  District,  11 
Gray  483. 

23  Bacon  v.  School  District,  97  Mass.  424  ;  Trim  v.  Charleston,  41 
Mo.  504  ;  Snow  v.  Brunswick,  71  Mo.  .>S1. 

24  Tecumseh  x\  Phillips,  5  Xeb.  403. 

25  Hill  V.  Boston,  122  Mass.  344  ;  but  see  Ba.ssett  v.  Fish,  75  X.  Y. 
306  ;  compare  Bigelow  r.  Meredith,  36  X.  H.  284. 

26  Finch  v.  Board  of  Education,  30  Ohio  St.  40 ;  Dij-clow  ;•.  llan- 
dolph,  14  Gray,  543  ;  Sullivan  v.  Boston,  123  Mass.  541. 


47  WHO  MAY  SUE  AND  BE  SUED, 


140 


CHAPTER  VI. 

PUBLIC    OFFICEES. 

?  47.  Generall.v  suits  by  and  against. 

i  43.  Governor,  attorney-general,  suits  by  and  against. 

I  4d.  Judicial  ofiicers,  suits  by  and  against. 

?  rx).  Treasurer,  suits  by  and  against. 

?  51.  SlierifT,  suits  by  and  against. 

I  52.  Receivers,  suits  by  and  against. 

§  47.  Generally  suits  by  and  against.  —  As  a  general  rule 
all  public  officers,  iilrliough  not  expres:?!}- authorized  by  statute, 
have  a  capacity  to  sue  commensurate  with  their  public  trusts 
and  duties.^  The  suit  should  be  brought  in  the  individual 
name  of  the  officer,  with  the  addition  of  his  name  of  office ;  ^ 
unless  officers  are  declared  by  statute  to  be  a  corporation,  in 
which  caso  suit  should  be  in  the  corporate  namc.^  A  public 
officer  is  liable  in  a  civil  action  to  a  i)rivate  person  specifically 
injured  thereby  for  the  non-performance  or  negligent  perform- 
ance of  a  ministerial  duty,  which  is  absolutely  required  of  him  ; 
but  if  p:rformance  of  the  duty  bo  discretionary  with  him,  he  is 
not  liable,  in  absence  of  fraud  or  malice,  to  a  private  person, 
either  for  a  failure  to  exercise  the  powers,  or  for  exercising 
them,  provided  he  acts  within  the  scope  of  his  authority.*  At 
common  law  a  suit  en  a  bond  to  one,  and  his  successors  or 
assigns,  must  bo  maintained  by  the  obligee  during  his  life,  and 
l:y  his  personal  representative  after  his  death,  except  in  caso  of 
solo  cor;;:)orations  that  arc  trustees  for  the  benefit  of  others,  and 
r.ot  for  themselves  only  ;  but  when  a  statute  directs  a  bond  to 
bo  given  to  a  certain  officer,  or  to  him  and  his  successors,  his 
successors  may  sue  thereon. ^  A  suit  does  not  abate  by  the 
expiration  of  the  term  of  office  of  the  plaintiff;  he  may  pro- 
ceed to  judgment,  or  his  successor  may  be  substituted.'^  When 
an  officer  in  his  official  capacity  receives  money,  ho  is  liable 
therefor  to  his  successor  in  office,  even  though  he  had  no 


lil  PUBLIC  OFFICEnS.  \  48 

authority  to  exact  the  payment;"  so -when  the  entire  cbim  is 
unlawful^  or  fraudulent.^  "When  money  has  been  paid  to  an 
oificer  under  claim  of  right  for  services,  and  to  which  he  is  not 
entitled,  it  is  not  a  voluntary  payment,  and  may  be  recovered 
back.^*^  No  demand  is  necessary  to  be  made  of  a  public  (officer 
for  money  in  his  hands  which  it  is  his  duty  to  pay  over.'^  An 
officer  wrongfully  kept  out  of  the  office  by  an  intruder  may 
recover  of  him  the  salary  or  perquisites. '=^  A  State  may  im- 
pose conditions  not  in  conflict  with  the  Constitution  or  laws  of 
the  United  States  upon  a  foreign  corporation  with  reference  to 
the  transaction  of  business  within  its  limits,  and  injunction 
will  not  be  granted  by  the  federal  courts  to  restrain  a  State 
officer  from  cancelling  the  license  of  such  corporation  to  do 
business  within  such  State,  for  non-compliance  with  such  con- 
ditions. ^-^ 

1  SapGrvJsors  v.  Stimsoii,  4  Hill,  137  ;  Haynes  v.  Butler,  .30  Ark.  71. 

2  Supervisors  v.  Stimson,  4  Hill,  137;  Conirars.  v.  Peck,  5  Hill, 
213  ;  Ag  t  ot  St.  Prison  v.  Kikeman,  1  Denio,  279. 

3  Pomoroy  v.  Wells,  8  Pai-G,  403. 

4  Connors  v.  Adams,  13  Hun.  420;  Kendell  v.  Stokes,  3  Kow.  07: 
Tompkins  '•.  Sands.  8  Wend.  46-5;  Reed  v.  Conway,  20  Mo. :«;  see 
Donahoe  v.  Ricliards,  33  3Io.  377;  Wall  v.  Trumbull,  16  Mich.  233: 
Downing  v.  McFadden,  18  Pa.  St.  333. 

5  .Stevens  v.  Hay,  6  Cush.  2-30 ;  and  see  Powers  7-.  Ware,  2  Pick. 
4.51 ;  Overseers  t'.  Saars,  22  Pick.  120;  Jansen  v.  Ostrander,  1  Cowen. 
677 ;  Ferebf 2  v.  Sanders,  3  Ired.  361 ;  Polk  v.  Plummer,  2  Humph. 
502 ;  Pickering?'.  Pearson,  6  X.  H.  560;  see  Hoxie  v.  Weston,  ly  M?. 
32(5 ;  Lord  v.  Lancey,  21  Me.  469. 

6  Manchester  r.  Herrington,  10  X.  Y.  169;  compare  Hughes  v. 
Riitlibone,  3  Alb.  L.  J.  71. 

7  Ham  v.  Silveruail,  7  Hun,  .3.5 ;  People  v.  Brown,  55  N.  Y.  ISO. 

S  First  Natl.  Bank  of  Sturgis  v.  Watkins,  21  Mich.  48S  ;  Fryo  v. 
Lockwood,  4  Cowen.  456  ;  and  see  Elliott  v.  Swartwout,  10  Peters,  I.5G  ; 
Be:id  v.  Hoyt,  13  Peters,  26.5. 

9    Robbins  v.  Woolcott,  G6  Barb.  65 ;  Griggs  r.  Griggs,  5G  X.  Y.  oft5. 

10  Grant  Co.  v.  Sels,  5  Oreg.  243 ;  Am.  Exc.  Fire  Ins.  Co.  v.  Britton. 
8  Bosw.  151. 

11  Little  r.  Richardson,  G  Jones,  306 ;  State  v.  Mcintosh,  9  Ired.  300. 

12  Auditor  v.  Benoit.  20  Mich.  173;  People  v.  Miller,  24  :SIich.  V>"\\ 
PvJttit  ?'.  Rosseau,  15  La.  An.  2:3;);  United  .States  v.  Addison,  6  Wall. 
2.1fi  ;  United  States  v.  Addison,  22  How.  181. 

13  Doyle  v.  Insurance  Co.  94  U.  S.  .5;37. 

\  48.  Governor,  attorney-general,  suits  by  and  against. 
—  The  governor  is  the  proper  representative  of  the  State,  and 


\  49  "WTIO  MAY   SUE  AND  BE   SUED.  112 

liouud  to  protect  its  interests;  incase  of  tlie  absence  of  the 
attorney-general  from  the  State,  he  may  prosecute  an  appeah^ 
The  judicial  and  executive  departments  of  government  are  dis- 
tinct and  independent,  neither  is  I'esponsible  to  the  other  for 
the  performance  of  its  duties,  therefore  neither  can  enforce 
performance  by  the  other.^  The  attorney-general  and  county 
attorney  are  tlie  olhcers  specially  charged  with  the  duty  of 
representing  the  public  in  all  litigation,  and  may  use  the  name 
of  the  State  or  county  to  pursue  any  remedy;-*  the  attornej-- 
1,'uneral  cannot,  however,  pursue  in  the  name  of  the  State, 
funds  of  a  county  fraudulently  misappropriated  by  its  offlcer.* 
In  a  suit  to  set  aside  a  patent  to  lands  issued  by  the  United 
States,  and  to  declare  the  same  void,  it  is  essential  that  it  appear 
that  the  attorney-general  either  instituted,  or  in  other  manner 
is  officially  responsible  for  it,  and  has  control  of  the  cause.^ 
A  suit  upon  the  bond  of  the  clerk  of  the  State  prison  is 
properly  prosecuted  in  the  name  of  the  people  by  the  attor- 
ney-general.'^ In  a  proceeding  in  the  name  of  the  attorney- 
general  to  compel  the  execution  of  a  charity,  it  is  proper  that 
there  be  some  responsible  relator,  who  will  be  responsible  for 
costs,  and  upon  whom  will  devolve  the  control  and  manage- 
ment of  the  cause.^ 

1  State  V.  Dubuclet,  22  La.  An.  602 ;  compare  Bobbett  v.  State,  10 
Kan.  U. 

2  Kico  V.  Austin,  \\)  Minn.  lOfi  ;  and  see  State  v.  Warmouth,  22  La. 
\\\.  1  ;  Dennett  Petn'r,  :i2  :sre.  50J  ;  Low  v.  Towns,  8  Ga.  372  ;  Mauran 
r.  Sniitli,  S  U.  I.  21(j :  Hawkins  v.  Governor,  1  Ark.  582  ;  State  r.  Gov- 
.inor,  2.5  X.  J.  L.  ;«'J ;  II.  I.  &  B.  By.  Co.  v.  Randolph,  24  Tex.  329; 
I'eople  V.  Bi.ssell,  19  111.  2;J0 ;  compare  State  v.  Governor,  5  Ohio  St. 
■i'53;  Chumasero  v.  Potts,  2  Mont.  256. 

3  Bobbott  V.  State,  10  Kan.  15. 

4  People  7'.  IngersoU,  58  N.  Y.  10;  and  see  Hannan  v.  Wells,  4 
Greg.  2.51 ;  Salt  Lake  Co.  v.  Golding,  2  Utah,  319. 

5  United  States  i'.  Thockmorton,  98  U.  S.  Gl ;  Same  Case,  8  The 
Reporter,  48.5. 

C    lluljn  V.  The  People,  31  Mich.  326. 

7    Alty.-Genl.  x\  Wallace,  7  Mon.  B.  619. 

\  49.  Judicial  officers,  suits  by  and  against.  —  An  action 
ai  law  may  be  maintjiined  by  the  chancellor  in  his  official  name 
uix;n  a  money  bond  given  to  him  in  his  official  capacity. ^    The 


U3  PUBLIC  OFFICEKS.  ^   49 

resignation  of  a  judge  of  proba'e  operates  as  a  discontinnance 
of  an  action  in  bis  name  upon  an  oflaee  bond,^  unless  his  suc- 
cessor comes  in  and  prosecutes  ;  ^  tbis  can  be  done  only  when 
autborized  by  statute,  and  applies  only  to  bonds  given  in  con- 
formity -svitb  tbe  statute.*  A  bond  executed  to  tlie  justices  of 
tlie  county  court  by  tbeir  names,  and  for  the  use  of  the  county, 
should  be  sued  upon  in  the  names  of  the  justices.^  An  action 
upon  the  bond  of  an  executor  under  the  revised  statutes,  com- 
menced prior  to  September  1,  1873,  to  recover  money  claimed 
to  be  due  upon  a  legacy,  was  properly  brought  in  the  name  of 
the  probata  judge,  with  his  consent.*'  Xo  action  lies  in  favor 
of  a  justice  of  the  peace  against  a  person  who  deceives  such 
justice  as  to  his  age,  and  is  thereupon  married,  to  recover  the 
penalty  imposed  upon  such  justice  for  having  performed  tlio 
ceremony."  Judges  of  courts  of  record  of  general  jurisdiction 
are  not  liable  in  civil  actions  for  judicial  acts,  even  when  in 
excess  of  their  jurisdiction,  and  alleged  to  have  been  done  cor- 
ruptly and  maliciously.  When  the  proceeding  complained  of 
is  of  a  judicial  character,  the  liability  of  a  justice  of  the  peace  to 
answer  civUiter  to  the  aggrieved  person  depends,  not  upon  the 
qiio  ardmo  with  which  he  acted,  but  upon  his  authority  to  act 
at  all  in  the  premises.^  So  for  the  illegal  exercise  of  ministerial 
powers,  or  discharge  of  ministerial  duties,  they  are  liable.^"  The 
rule  is  a  general  one,  that  no  public  oflBcer  is  liable  in  a  civil 
action  for  a  judicial  determination,  however,  erroneous  it  may 
be,  nor  however  malicious  the  motive  that  prompted  it.^^ 

1  Chancellor  v.  Hoxsey,  41  X.  J.  L.  218. 

2  Cutts  ?'.  Parsons,  2  Mass.  440 ;  and  see  Stevens  r.  Ilay,  6  Cush.  2^i. 

3  Holten  V.  Cook,  12  Mass.  575. 

4  Cleaves  r.  Dockray,  G7  Me.  113 ;  see  Lord  v.  Lancry,  21  Me.  46U. 

5  Craig  v.  Co.  Court,  12  Mo.  9G. 
G  Buel  V.  Dickey,  9  Xeb.  230. 

7  Harvey  i-.  Bush,  3  N.  J.  L.  975. 

8  Pickett  V.  Wallace,  57  Cal.  557 ;  Bradley  v.  Fisher,  13  Wall.  Ml : 
Woodraflf  r.  Stawart,  G3  Ala.  215 ;  Lange  v.  Benedict,  Ti  N.  Y.  2.5. 

9  Tavlor  v.  Doremus,  16  X.  J.  L.  477;  Morton  v.  Cra».e,  S9  Mich. 
')iO ;  Piper  v.  Pearson,  2  Grav,  122 ;  Bnrnham  r.  Stevens,  'Si  X.  H.  25^ : 
and  S3e  Bradley  v.  Fisher,  13  Wall.  :«1 ;  Spencer  v.  Perry,  17  Me.  415. 

10  Snllivan  v.  Jones,  2  Grav,  5?2  ;  and  see  Kelly  v.  Moore,  51  Ala. 
:365  ;  Percival  v.  Jones,  2  Johns  Cas.  50 ;  Welch  r.  Frost,  1  Mich.  Si. 


g  50  ■\VnO   3IAY   SUE   AND  BE  SUED.  Hi 

11  Turpen  r.  Booth,  5fi  Cal.  68 ;  Downer  v.  Lent,  6  Cal.  95  ;  Weaver 
V.  Devendrof,  3  Donio,  120;  rJorden  v.  Farren,  2  Doug.  (Mich.)  411; 
but  see  Klbin  v.  Wilson,  33  Md.  142  ;  Friend  t\  Hamill,  M  Md.  200. 

§  60.  Treasurer,  suits  by  and  against. —An  action  upon 
a  bond  given  to  A.  B.,  treasurer  of  tlie  State,  and  his  successors 
in  that  office,  may  he  maintained  in  the  name  of  the  successor 
in  office. 1  The  county  treasurer  has  capacity  to  sue  the  tax 
collector  upon  his  official  bond,  for  failui'e  to  pay  over  moneys 
received  in  his  official  capacity  at  a  delinquent  tax  sale,  in  excess 
of  taxes,  penalty,  and  costs. "•'  When  a  county  treasurer  sells 
lands  for  delinquent  taxos,  but  fails  to  collect  the  amount  bid 
by  the  purchaser,  it  is  not  such  a  sale  as  will  support  an  action 
for  his  fees  and  charges,  the  sale  is  not  completed  until  the 
amount  bid  has  been  collected  ;3  so,  also,  the  treasurer  cannot 
retain  special  counsel  to  prosecute  the  tax  collector  for  funds 
of  the  county.*  When  a  town  ti'easurer  is  authorized  to  bring 
suit  upon  debts  due  the  town,  the  suit  will  not  abate  by  the 
expiration  of  his  term  of  office.^  The  office  of  parish  treasurer 
authorizes  the  incumbent  to  receive  all  money  due  the  parish, 
but  unless  specially  authorized  by  statute,  he  is  not  the  proper 
person  to  represent  the  corporation  in  court,  either  as  plaintiff 
or  defendant.''  In  Nebraska,  by  statute,  suit  on  behalf  of  the 
public  upon  the  bond  of  a  county  treasurer  must  be  instituted 
by  the  county  clerk,  at  the  direction  of  the  State  auditor  or 
county  commissioner ;  these  facts  must  be  alleged  in  the  peti- 
tion.^ A  county  may  maintain  an  action  against  its  treasurer, 
on  his  official  bond  for  moneys  collected  by  him  in  his  official 
capacity,  and  which  ho  fails  to  pay  over  as  required  by  law.^ 
So  the  State  auditor  may  in  his  official  capacity  maintain  an 
action  against  the  State  treasurer  and  county  treasurer  to  enjoin 
them  from  receiving  worthless  script  in  payment  of  taxes.** 
When  a  county  treasurer  has  proper  funds  in  his  hands,  and 
refuses  to  make  payment  of  a  claim  entitled  to  be  paid,  he  is 
liable  to  an  action  upon  his  official  bond.^"  So,  also,  for  furids 
of  the  county  coming  into  his  hands  the  treasurer  is  liable, 
and  the  mere  fact  that  such  funds  have  been  stolen  is  no 
defense. '1 


145  PUBLIC   OFFICEBS.  g  51 

1  Pickering  v.  Pearson,  G  X.  11.  5-5!) ;  see  also  authorftlos,  I  SO. 

2  Haynes  r.  Butler,  ;50  Ark.  70  ;  and  see  Lane  r.  Ka.sey,  1  Mi-t.  412  ; 
compare  Clifton  v.  Wynne,  80  N.  C.  1-16;  Mississippi  Co.  r.  Jar-kson,  .51 
Mo.  23 ;  Johnson  v.  Goodridge,  15  Me.  30 ;  Parish  Treas.  v.  Ku.s.sell,  3 
La.  94. 

3  Miles  V.  Miller,  5  Neb.  272. 

4  Lewenthall  v.  State,  51  Miss.  651. 

5  Kellar  v.  Savage,  20  Me.  2W  ;  authorities,  ?  80. 

6  Helluin  v.  Maurin  8  La.  113  ;  Townseiid  r,  Iloj'le,  20  Conn.  5. 

7  Albertson  v.  State,  9  Xeb.  435;  and  see  Yates  r.  The  State,  .58 
Ind.  299  ;  Sacramento  Co.  r.  Bird,  31  Cal.  6S. 

8  Greenville  Co.  v.  Runion,  9  S.  C.  3. 

9  Auditor  v.  Treasurer,  4  S.  C.  311. 

10  Briggs  I'.  Coleman,  51  Ala.  563. 

11  Co.  Commrs.  v.  Jones,  18  Minn.  200 ;  State  v.  Sheldon,  10  Neb. 
454  ;  State  v.  Harper,  6  Ohio  St.  600  ;  and  see  United  States  v.  Daahiel, 
4  Wall.  185. 

I  51.  Sheriff,  suits  by  and  against.  —  A  sheriff  may  sne  on 
a  replevin  Loud  taken  by  him  on  the  failure  of  the  plaintiff  in 
the  replevin  to  prosecute  his  action. i  And  so  an  action  upon  a 
hail  bond  must  be  brought  in  the  name  of  the  sheriff  to  whom 
it,was  given  ;  ^  the  sheriff  who  takes  a  delivery  bond,  and  the 
parties  thereto,  have  such  an  interest  i:i  the  property  mentioned 
therein  that  they  may  unite  in  a  suit  in  equity  for  its  protec- 
tion.^ A  sheriff  who  by  virtue  of  a  writ  of  attachment  levies 
upon  the  property  and  effects  of  a  defendant,  does  not  thereby 
acquire  such  rights  in  an  unnegotiable  demand  due  the  defend- 
ant as  to  enable  liim  to  maintain  suit  thereon  in  his  own  name.* 
When  property  is  sold  at  execution  sale,  he  may  in  his  oflScial 
capacity  maintain  an  action  against  the  purchaser  for  its  price.* 
So  where  personal  proparty  levied  upon  is  wrongfully  taken 
from  the  possession  of  the  sheriff,  he  and  not  the  plaintiff  is  the 
proper  person  to  maintain  an  action  for  the  tort.''  When  an 
officer  sells  the  same  property  under  several  executions  against 
the  same  debtors,  he  may  file  a  bill  in  chancery  calling  upon 
the  judgment  creditors  to  interplead  and  settle  their  priorities ;  ^ 
but  where  an  officer  has  levied  upon  property,  and  third  per- 
sons claim  the  same  adversely  to  the  interest  of  t!ic  officer  and 
the  execution  creditor,  a  bill  of  interpleader  cannot  be  main- 
tained by  the  officer  against  such  persons  and  the  execution 
Parties—  13 


g  61  WUO  MAY  SUE  AND  BE  SUED.  116 

creditors. 8  When  tlic  execution  creditor  has  received  more 
nionty  than  he  is  entitled  to  upon  bis  claim  from  the  sheriff, 
such  onicur  and  not  the  defendant  in  execution  is  the  proper 
person  to  maintain  an  action  for  its  recovery,^  In  an  action 
against  a  sheriff  for  an  escape  of  a  debtor  imprisoned  under 
civil  process,  the  fact  that  the  jail  was  insecure  is  no  defense  to 
the  action. 12  When  an  officer  levies  upon  and  sells  under  exe- 
cution the  property  of  a  stranger  to  the  writ,  be  is  liable  for  the 
tort  in  bis  individual  capacity  and  not  upon  bis  official  bond ;  ^^ 
so  a  deputy  sberifl'  is  directly  liable  to  the  person  injured  for 
a  trLSpass  committed  under  color  of  process. ^^  j^  an  action 
against  a  sheriff  for  tortious  acts  of  bis  deputy,  tbe  defendant 
need  not  be  described  as  sberiff.^^  After  judgment  in  trespass 
tie  bonis  aspurtatis  against  a  deputy  sheriff,  and  execution 
levied  on  bis  body  but  not  satisfied,  no  action  lies  against  tbe 
bberiff  for  tbe  same  cause.^*  A  sheriff  and  bis  deputy  cannot 
be  sued  jointly  for  a  tort  done  by  tbe  deputy  alone. ^^  To  ren- 
der an  officer  liable  for  failure  to  levy  an  attachment  upon 
defendant's  property,  it  is  not  necessary  that  execution  should 
have  been  placed  in  tbe  officer's  bands  within  thirty  days  after 
judgment  if  prior  to  judgment  tbe  debtor  bad  convened  all  bis 
property, i"  or  bad  become  insolvent  and  witbout  property.^' 
An  action  will  not  lie  against  an  officer  for  failure  to  take  a 
bond  from  detendaut  for  tbe  forthcoming  of  tbe  chattel  sued 
for  in  an  action  of  trover,  under  an  order  made  under  tbe  act 
of  December,  1839,  unless  it  appears  tbe  plaintiff  in  tbe  action 
of  trover  recovered  judgment  therein.^^  At  common  law  a 
debtor  could  not,  without  bis  assent,  be  imprisoned  for  debt  in 
tbe  same  prison  with  felons ;  but  in  Ohio  if  tbe  jail  bas  but  one 
apartment  no  action  will  lie  against  the  sheriff  for  so  imprison- 
ing tbem.i'*  An  action  against  a  sheriff  and  bis  predecessor  in 
office,  jointly,  for  tbe  vulue  of  property  alleged  to  bavc  been 
Beized  by  tbe  former  and  lost  while  in  charge  of  tbe  latter, 
cannot  be  maintained ;  either  one  or  the  other  is  liable,  botb 
cannot  be.^"  On  bills  to  restrain  execution  of  process  or  per- 
formance of  official  acts  tbe  sheriff  is  made  a  party,  as  tbe 
design  of  the  bill  is  to  restrain  bim  from  acting;  but  wbere 


147  PUBLIC  OFFICEBS.  ^51 

no  relief  is  prayed  or  relief  asked  against  the  oflacor,  it  is  not 
necessary  for  him  to  answer.^i  A  cause  of  action  against  a 
sheriff  for  failure  to  pay  over  money  collected  by  him  on  exe- 
cution does  not  accrue  until  payment  has  been  demanded  of 
him. 22  TThere  the  money  was  collected  by  a  deputy  shorilTin 
his  oflBcial  capacity,  demand  of  payment  and  refusal  by  him  is 
equivalent  to  demand  and  refusal  of  his  princip.d.'''^  An  action 
for  the  misfeasance  of  a  sheriff  or  his  deputj'  does  not  survive 
him  and  therefore  cannot  be  continued  against  his  executor.'* 

1  Ogle  V.  Smith,  2  Houst.  175 ;  and  see  Cheseldine  r.  Mathers,  2 
Disn.  594. 

2  Brown  r.  Benton,  1  Mo.  227  ;  but  see  Buisson  v.  Hydo,  17  La.  13, 

3  Dechard  v.  Edwards,  2  Sneed,  97  ;  see  HanrjooJ  v.  Fisher,  U)  Mo. 
502. 

4  Sublette  v.  Melhardo,  1  Cal.  105. 

5  Galpiii  V.  Lamb,  23  Ohio  St.  5C4  ;  Ennis  rr.  Wall-r,  .•;  Blac'rf.  -572  ; 
Gosksll  V.  Morris,  7  Watts  &  S.  39  ;  Armstrong  v.  Vroman,  11  Minn. 
222  ;  Chappell  v.  Dann,  21  Barb.  24. 

6  Barker  r.  Mathews,  1  Denio,  a35  ;  A.  B.  &  C.  Co.  v.  Pratt,  10 
Hun,  445  ;  Ilowland  v.  Willetts,  9  X.  Y.  173. 

7  Lawson  v.  Jordan,  ID  Ark.  302  ;  and  see  King  r.  Green,  10  Mo. 
196  ;  Rc'igart's  App.  7  Watts  &  S.  267  ;  Turner  v.  Lawrence,  11  Ala. 
429  ;  compare  Shaw  v.  Chester,  2  Edw.  Ch.  406. 

8  Shaw  V.  Costar,  8  Paiare,  345  ;  Shaw  v.  Chester,  2  Edw.  Ch.  406  ; 
compare  Xash  v  Smith,  G  Conn.  426. 

9  Longenecker  v.  Zeigler,  1  Watts,  2.52. 

10  Kepler  r.  Barker.  13  Ohio  St.  180  ;  Richardson  ?•.  Sponcer.6  0hio, 
14;  Conimrs.  v.  Mighels,  7  Ohio  St.  10);  Cargill  ;•.  Taylor.  10  Mass. 
207  ;  and  see  Houser  v.  Hampton,  7  Ired.  3:J4  ;  Gill  r.  Miner.  13  Oliio 
St.  197, 

11  State  V.  Conover,  28  N.  J.  L.  220  ;  see  People  r.  Schn yler,  4  X.  Y. 
173  ;  compare  Skinner  v.  Phillips,  4  Mass.  60  ;  Satterwhite  r.  Carson, 
3  Ired.  540  ;  Stillaman  v.  Squire,  1  Denio,  323. 

12  Remlenger  i\  Weyker,  22  Wis.  383. 

13  Stillman  v.  Squire,  1  Denio,  323  ;  and  see  Houser  v.  Hampton,  T 
Ired.  im. 

14  Campbell  r.  Phelps,  1  Pick.  65  ;  contra,  Morgan  v.  Chester,  4 
Conn.  ass. 

15  Campbell  v.  Phelps,  1  Pick.  65  ;  but  see  Morgan  i-.  Chester,  4 
Conn.  :iSS. 

16  ■  Townsend  v.  Llbbey,  70  Me.  163. 

17  Abbott  V.  Jacobs,  49  Me.  319. 

18  Lyles  v.  Bolles,  8  S.  C.  261. 

19  Campbell  v.  Hampson,  1  Ohio,  123. 

20  X  O.  Ins.  Asso.  v.  Harper,  32  La.  An.  11C5 ;  sec  also  Bower. 
Williams,  7  3ton.  B-  206. 

21  Brooks  V.  Lewis,  13  X.  J.  Eq.  214. 


g  52  WHO  SLVY  SUE  AND  BE  SUED.  148 

22  Il'l-hler  V.  Foster,  22  Ohio  St.  29  ;  Succession  of  McCloskey,K2 
I^..  An.  i'A  ;  see  Waite  v.  Delcsdernier,  15  Me.  145. 

Z")    J.ylo  V.  Wilson,  4  Ired.  223. 

2-1  Cunninarhnm  v.  .Taqn"s,  10  N.  .T.  L.  42;  Cravutli  v.  Plympton, 
13  Miu^s.  455  ;  Valentine  v.  Norton,  :eo  Me.  109. 

2  5 J.  Eec:iver8,  suits  by.  —The  appointment  of  a  receiver 
iu  a  suit  rests  veiy  much  in  the  discretion  of  the  court.^ 
An  order  appointing  a  receiver  when  no  suit  is  pending  con- 
cerning the  i^roperty  of  which  he  is  put  in  charge  is  void.^ 
The  order  can  only  bo  made  at  the  instance  of  a  person  who 
has  an  acknowledged  interest  or  a  strong  presumption  of  title, 
and  where  the  property  or  its  rents  and  profits  are  ia  danger  of 
being  injured  or  lost.^  The  general  authority  to  manage  the 
concerns  of  and  carry  on  the  business  of  a  corporation  cannot 
be  assumed  by  a  court  of  chancery  or  be  vested  in  a  receiver,* 
neither  will  it  be  taken  from  its  managing  board  except  under 
proceedings  instituted  to  wind  up  the  corporation  under  the 
statute.^  The  title  of  the  receiver  to  the  property  which  is  the 
subject  of  the  receivership  dates  from  the  time  of  his  appoint- 
ment and  not  from  the  date  of  his  giving  bond.*^  When  pend- 
ing an  action  by  plaintiff  a  receiver  is  appointed  to  take  charge 
of  its  assets,  etc.,  the  action  may  be  continued  in  the  name  of 
the  original  plaintiff  for  the  benefit  of  the  receiver; "  and  as  a  rule 
it  would  seem  that  in  absence  of  a  law  or  an  oreTer  of  the  appoint- 
ing court  authorizing  a  receiver  to  sue  in  his  own  name,  he 
should  sue  in  the  name  of  the  person  in  whom  the  right  of 
activjn  existed  at  the  time  of  his  appointment.^  He  cannot 
maintain  trover  in  his  own  name  for  the  conversion  of  gooels 
before  his  appointment  ;^  but  if  goods  are  taken  from  his  pos- 
session and  converted  after  his  appointment,  he  may  maintain 
the  action. 1''  A  receiver  appointed  by  virtue  of  the  statute  pro- 
viding a  method  for  discovering  concealed  property  of  juelg- 
ment  debtors  on  the  return  of  execution  unsatisfied  may 
maintain  a  bill  in  his  official  capacity  to  annul  sales  of  such 
property  or  encumbrances  upon  it  made  in  fraud  of  credit- 
ors ;"  but  he  cannot  maintain  an  action  to  enforce  a  resulting 
trust  in  favor  of  tlie  creditors  of  one  who  pays  the  consielera- 


149  EECEITEES.  g  52 

tion  for  lands  which  are  conveyed  to  another,^^  The  creditor 
may  proceed  dii-ectly  to  enforce  the  tnist,'^  after  exhausting 
his  legal  remedies.^*  A  receiver  who  represents  all  the  mem- 
bers of  a  corporation,  or  partnership,  or  all  the  parties  to  a 
subscription  for  a  common  purpose,  may  maintain  an  action 
against  one  of  the  persons  so  represented  to  recover  for  a  sum 
due  to  the  whole  body  so  represented. ^^  So  he  may  maintain 
an  action  to  set  aside  a  judgment  alleged  to  have  been  obtained 
by  collusion  with  the  officers  of  the  company  in  fraud  of  the 
rights  of  creditors;!^  but  when  appointed  to  collect  tlie  rents 
and  profits  of  real  estate  he  derives  no  title  to  the  land,  and 
cannot  maintain  an  action  to  set  aside  a  fraudulent  conveyance, 
or  a  fraudulent  assignment  of  a  mortgage  received  u^xm  such 
conveyance,  in  absence  of  an  allegation  that  the  defendant  has 
made  claim  or  asserted  title  adverse  to  plaintiff.^'  A  receiver 
appointed  by  the  court  of  another  State  may  sue  in  his  official 
capacity  in  this  State  to  recover  the  property  of  the  person 
they  represent,  except  when  the  claim  conflicts  with  the  rights 
of  creditois  in  this  State. ^^  Upon  the  death  of  a  receiver  pend- 
ing suit  instituted  by  him,  if  the  cause  of  action  survives,  his 
successor  may  be  substituted  and  the  action  proceed  in  liia 
name.'^ 

1  Barrv  ?•.  Briggs,  22  Mich.  207:  Jacobs  r.  Gibson,  0  Xfb.  ^2; 
Vause  r.  Woods,  46  Miss.  127  ;  Beecher  v.  M.  &  P.  Rollinic  M.  Co.  -10 
Mich.  309. 

2  Merch.  &  Manuf.  Nat.  Bank  v.  Kent,  4:^  Mich.  296. 

3  Hannah  K.  Chase's  Case,  1  Bland,  213  ;  Vause  r.  Woods,  AC,  Miss. 
127  ;  Kimball  v.  Goodburn,  32  Mich.  12. 

4  Port  Huron  &  G.  Ry.  Co.  v.  Judge  etc.  31  Mich.  457  :  and  .see 
Kimball  r.  Goodburn,  32  Mich.  12  ;  compare  Barton  r.  Barbour,  13  The 
Reporter,  129. 

5  Port  Huron  &  G=  Ry.  Co.  r.  Judge  etc.  31  Mich.  457. 

6  Maynard  r.  Bond,  G7  Mo.  317  ;  Watson  r.  X.  V.  Central  Ry.  Co. 
47  X.  Y.' 15:1 ;  compare  Farmers'  Bank  v.  Beaston,  7  Gill  «fc  J.  424; 
generally  Rankine  v,  Elliott,  16  X.  Y.  :«0  ;  Everett  v.  Noft",2.s  Md.  1»6. 

7  Phoenix  "W.  Co.  v.  Badger,  67  X.  Y.  299  ;  and  see  Rankine  v. 
Elliott,  16  X.  Y.  380. 

8  Garver  r.  Kent.  70  Ind.  429  ;  compare  De  Wolf  »•.  Sprajres  ^rannf, 
11  R.  I.  aSO:  but  see  Wrav  v.  Jamison.  10  Humph.  186:  Singi>rly  v. 
Fox,  75  Pa.  St.  114  :  Yeager  v.  Wallace.  44  I»a.  St.  2!>.5  :  Porter  r.  Wil- 
liams. 9  X'.  Y.  147  ;  generally  Sereven  ?•.  Clark,  4S  Ga.  42  :  Lathrop  v. 
Knapp.  :^  Wis.  310 ;  Haxtun  v.  Bishop,  3  Wend.  16  ;  Tillinghast  r. 
Champlin,4R.  I.  174. 


62  a  WHO  MAY   SUE  AND  BE  SUED. 


150 


9    Yoasjpr  v.  AVjillace,  44  Pa.  St.  295. 

10  Singvrly  r.  Fox,  75  Pa.  St.  114. 

11  MIIKT  V.  MucKeiizie,  20  X.  J.  Eq.  292  ;  and  see  Hamlin  r.  Wright, 
2.3  Wis.  4!t:{ ;  Bosiwifk  v.  Meiick,  40  N.  V.  .384  ;  Kennedy  r.  Thorp,  ol 
N.  Y  176;  see  Higsins  r.  Gillesheiner,  20  N  J.  Eq.  »^S  ;  generally 
Stoeokle  V.  Elilr-rs  ;i7  Mich.  203  ;  Donnelly  v.  \^  est,  1/  Hun,  oGo  ;  Mc- 
Arthiir  r.  Hovsradt,  11  Paige,  4!>6  ;  compare  Foster  v.  Townsend,  68 
N.  Y.  203  ;  see  also  Porter  v.  Williams,  9  JS\  Y.  14/. 

12  Underwood  r.  Sutcliflfe,  77  N.  Y.  GO. 

13  Wood  V.  Robinson,  22  IST.  Y.  565. 

14  Ocean  Nat.  Bank  v.  Olcot,  46  X.  Y.  21 ;  and  see  Underwood  v. 
Sutcliire,  77  N.  Y.  03. 

15  Latlirop  r.  Knapp,  .37  Wis.  .307  ;  and  see  Van  Cott  v.  Van  Brunt, 
2Abb.  X.  (.■.283. 

16  Whittlesey  v.  Delaney,  73  X.  Y.  574  ;  Talmadge  v.  Pell,  7  X.  Y. 
339. 

17  Foster  r.  Townsend,  &S  X.  Y.  203. 

18  I'ugh  r  Hurtt,  52  How.  Pr.  25  ;  Hunk  v.  St.  John,  20  Barb.  587  ; 
nurd  c. Citv  of  Elizabeth,  41  X.  J.  L.  2;  Taylor  v.  Columbian  Ins. 
Co  J4  Allen,' ;i.>4 ;  McAlpin  v.  Jones,  10  La.  An.  552  ;  but  see  Farmers' 
&  M.  Ins.  Co.  V.  Needles,  52  Mo.  18  ;  Booth  v.  Clark,  17  How.  327  ;  see 
alsf>  Ingleliart  v.  Bierce,  :«  111.  137  ;  compare  Graydon  v.  Church,  7 
Mich.  50 ;  generally  S.  C.  Ry.  Co.  v.  Peo.  Sav.  Inst.  64  Ga.  19. 

19  Searcy  v.  Stubbs,  12  Ga.  438. 

§  62  a.  Eeceivers,  suits  against.  —As  a  general  rale  a  re- 
ceiver cauuot  bo  sued  without  leave  being  granted  by  the  court 
appointing  him  ;'^^  and  this  rule  extends  as  well  to  suits  brought 
to  recover  money  or  damages  as  to  those  brought  to  recover 
specific  property.^i  When  an  order  granting  the  right  to  bring 
suit  against  a  receiver  has  been  imprudently  granted  it  may  be 
revoked. ^2  go  also  if  such  order  confine  the  right  to  the  court 
granting  it,-^  and  the  plaintiff  seeks  to  evade  the  order,  it  may 
be  revoked.2*  "When  a  receiver  has  been  appointed  for  the  de- 
fendant in  a  pending  suit,  he  must  be  made  a  party  by  an  order 
of  the  court  before  he  can  interfere  in  the  action,  as  by  giving 
notice  of  motion,-^  or  conducting  an  appeal.-'^  When  receivers 
are  running  a  railroad  under  the  appointment  of  a  court  of 
chancery  of  another  State,  and  are  there  held  liable  as  common 
carriers  to  an  action  at  law,  they  may  be  sued  in  Massachusetts 
as  common  carriers. ^^  When  a  stock  of  goods  is  committed  to  a 
receiver,  it  is  his  duty  to  take  and  safely  keep  the  same  subject 
to  the  order  of  tlie  court ;  but  if  he  sell  the  goods  he  can  only 
be  required  to  account  for  the  proceeds  of  the  actual  sales  and 


151  EECErv'EBS.  2  52  a 

receipts,  unless  by  negligence,  bad  faith,  etc.,  he  did  not  realize 
the  full  value  of  the  property;-**  and  a  creditor  is  not  limited 
to  a  motion  in  the  original  action  in  which  the  receiver  wan 
appointed,  but  may  bring  an  equitable  action  to  set  aside  the 
sale.-*^  When  the  condition  of  the  bond  of  a  receiver  waa 
"  that  he  should  truly  and  faithfully  account  for,  and  pay  over 
the  moneys  which  should  come  into  his  hands,"  an  omission  to 
pay  to  himself  as  receiver  moneys  which  he  had  boiTowtd 
from  the  company  prior  to  his  appointment  was  a  breacli  for 
which  he  and  his  sureties  were  liable.-*"  A  person  who  has  pur- 
chased premises  mortgaged  to  a  bank  by  a  former  owner  cannot 
maintain  an  action  against  the  receivers  of  a  bank  to  procure  a 
cancellation  of  the  mortgage  on  the  ground  that  it  was  obtained 
by  fraud  of  the  bank ;  if  he  has  any  remedy  he  must  proceed 
by  petition  in  the  original  action  in  which  the  receivers  were 
appointed  ;^i  but  when  the  receiver  assumes  to  take  possession 
of  property  not  embraced  in  the  decree  aj^pointing  him,  and  to 
■which  the  debtor  never  had  any  title,  he  is  a  trespasser,  and  the 
owner  may  sue  him  in  any  appropriate  form  of  action  either 
for  damages  or  to  recover  the  property.^-  In  proceedings 
against  a  bank  which  has  suspended,  arising  from  its  failure  to 
deliver  over  special  deposits  made  with  it,  a  receiver  duly 
appointed  is  properly  joined  as  party  defendant. ^"^ 

•20  Barton  r.  Barbour,  13  The  Reporter,  120  ;  Tromper  v.  Brooks.  40 
Mich.  3;i5  ;  CoUimbiun  Book  Co.  i\  Degolver,  115  Mass.  »> ) ;  Noe  r.  (iib- 
son,  7  Paige,  .51.5  ;  Coerett  v.  Xeff,  28  Md.  is:  ;  De  (iraf^'.iir-iil  >•.  B.  A 
A.  Ev.  Co.  57  Ga.  2.3  ;  Savln°rs  Bank  v.  Simpson,  22  Kan.  -I-T? :  liobin- 
son  i:  A.  G.  W.  Ry.  Co.  66  Pa,  St.  161 ;  compare  Hills  v.  Parker,  III 
Mass.  .500. 

21  Kinnev  v.  Crocker,  18  Wis.  77 ;  Blnmenthal  r.  Brainerd.  3S  Vt. 
407;  see  also  Thompson  v.  Scott,  4  Dill.  .5ns  ;  Barton  v.  Barbour, 
13  The  Reporter,  129;  compare  St.  Jos.  <fc  D.  C.  Ry  Co.  v.  Smitli. 
19  Kan.  228  ;  Allen  v.  Central  Ry.  42  Iowa,  635  ;  Palys  v.  Jewett,  .32 
]^.  J.  Eq.  :»4. 

22  Atty.-Gen.  v.  Xo.  Am.  Ins.  Co.  6  Abb.  N.  C.  300  ;  McArdle  r-. 
Barney,  .50  How.  Pr.  99. 

23  Savings  Bank  v.  Simpson,  22  Kan.  4-32  ;  St.  Jos.  *  P.  C.  Ry.  Co. 
V.  Smith,  lit  Kan.  2:»  ;  and  see  Blnmenthal  v.  Brainerd,  3d  Vt.  407. 

24  Savings  Bank  v.  Simpson,  22  Kan.  4*2. 

25  S.  C.  Ry.  Co.  V.  People's  Sav.  Inst.  &4  Ga.  31. 

26  Tracy  r.  First  Xat.  Bank,  37  N.  Y.  .524. 

27  Paige  r.  Smith.  90  Mass.  396 ;  and  see  Blumenthal  r.  Brainerd. 
38  Vt.  498  ;  Meara  v.  Holbrook,  20  Ohio  St.  137. 


§  62  a  "WHO  MAY  SUE  AJTD  BE  SUED.  152 

2.S  Domnln  v.  Cassidy  55  Miss.  321 ;  and  see  Commonw.  r  Eagle  F. 
Ins.  Co.  H  Allen,  :W'J. 

2<)    Ilackloy  r.  Draper,  60  N.  Y.  89. 

oO    C'nnnnonw.  v.  Gould,  118  Mass.  307. 

31  I'ortcr  v.  Kinsman,  126  Mass.  142  ;  and  see  Atlas  Bank  v.  Nahant 
Bank,  23  I»ick.  480;  senerallv  Columbian  B.  Co.  v.  De  Golyer,  115 
Mass.  6!i ;  Noe  r.  (Jibson,  7  Paige.  514  ;  Robinson  v.  G.  W.  Ry.  Co.  66 
Pa.  St.  lf>l  ;  Wiswall  v.  Sampson,  14  How.  61  ;  compare  Hills  v. 
ParkiT,  ill  Mass.  510. 

.32  Hills  )•.  Parker,  111  Mass.  511  ;  generally  Parker  v.  Browning,  8 
Paige,  3:«i ;  Paige  r.  Smith,  <)9  Mass.  396. 

:«  Tumor  ?-.  First  Nat.  Bank,  26  Iowa,  564  ;  and  generally  see  Hub- 
bard I'.  Eames,  22  Barb.  597  ;  Parker  v.  Browning,  8  Paige,  '389. 


153  BANKRUPTS  \SD  I^•SOL^-E^•TS.  2  53 


CHAPTEK  YII. 

BAXKBrPTS   AXD   INSOLVENTS. 

I  53.    Bankrupts,  actions  relating  to  estates  of. 

?  54.    Bankrupts  continued. 

?  .55.    Insolvents,  actions  relating  to  estates  of. 

§53.    Bankrupts,   actions  relating  to  estatas  of.  — After 

an  as.signment  in  bankruptcy,  which  passes  the  debt,  the  bank- 
rupt cannot  sue  upon  a  chose  in  action  in  the  name  of  another 
■who  has  the  legal  title ;  ^  but  an  action  may  be  maintained 
upon  a  chose  in  action  payable  to  plaintiff,  even  though  be  has 
become  a  bankrupt ;  if  the  claim  has  been  sold  by  the  assignee, 
and  the  suit  is  brought  for  the  benefit  of  the  purchaser.-'  So 
when  a  note  is  transferred  by  the  assignee  to  the  bankrupt 
under  section  three  of  Act  of  1841  he  may  sue  thereon  in  his 
own  name.-*  Under  the  bankrupt  law  of  the  United  States  a 
certified  copy  of  the  assignment  is  conclusive  evidence  of  the 
title  of  the  assignee,  and  of  his  authority  to  sue ;  *  he  is  not 
confined  to  the  federal  courts  for  relief,  but  generally  he  may 
maintain  suits  in  the  State  courts,  and  in  his  own  name  ;  =>  so 
to  recover  money  fraudulently  paid  by  the  bankrupt  to  obtain 
signatures  to  a  composition  agreement,''  to  recover' property 
conveyed  to  defraud  creditors,'  to  set  aside  fraudulent  convey- 
ances.'* Creditors  cannot  maintain  such  suits,"  even  tliough 
the  assignee  refuses  to  prosecute  ;  i"  in  such  case  their  remedy 
is  by  application  to  the  court  appointing  him.'^  The  assignee 
not  only  represents  and  stands  in  the  place  of  the  bankrupt, 
but  he  also  represents  creditors.  He  has  a  stronger  right  than 
the  bankrupt,  and  may  contest  claims  and  rights  of  property 
which  the  latter  could  not.i'-  After  the  publication  of  notice  of 
bankruptcy  as  required  by  law,  a  payment  by  a  debtor  to  the 
bankrupt  of  the  amount  due  the  estate  will  be  of  no  avail  iu  a 
suit  by  the  assignee  therefor,  even  though  made  in  good  faith, 
and  without  actual  notice. i=*    In  a  suit  by  the  assignee  he  cannot 


§  53  "WHO   MAY  SrE  AND  BE   SrED.  154 

Bet  up  the  Statute  of  Limitations  against  a  counter-claim  based 
upon  a  claim  against  the  estate,  valid  at  the  time  of  the  adjudi- 
cation of  bankruptcy  ;^*  nor  can  he  maintain  an  action  in  the 
federal  courls  against  a  sheriff  to  recover  property  of  the 
bankrupt  estate,  held  by  the  latter  by  virtue  of  a  writ  of 
attachment  issued  out  of  a  State  court  prior  to  the  adjudication 
of  bankniptcy.15  A  plaintiff  in  a  pending  suit  does  not  divest 
himself  (if  his  iutei'est  therein,  nor  of  his  right  to  prosecute  the 
same  by  an  application  to  be  declared  a  bankrupt ;  until  the 
adjudication  his  rights  in  the  premises  are  not  affected;^**  even 
then  he  may  maintain  the  action  unless  the  bankruptcy  is  sug- 
gested;'' but  when  that  fact  is  brought  to  the  notice  of  the 
court  the  assignee  should  be  substituted  as  plaintiff,  and  prose- 
cute the  action. i**  If  adjudged  a  banki'upt  after  judgment,  and 
before  appeal,  either  the  bankrupt  or  the  assignee  may  prose- 
cute an  appeaL'**  If  the  fact  occurs  after  submission  of  the 
cause  to  the  supreme  court,  judgment  will  be  rendered  as  of 
the  date  of  submission. 2" 

1  .  Berry  v.  Gillls,  17  X.  H.  16. 

2  Foster  r.  Wylie,  60  Me.  109;  and  see  Pentecost  v.  Mavhew,  129 
Mass.  XJS  ;  Hayes  v.  Pike,  17  X.  H.  565. 

3  Kobinsonr.  Hal],  11  Gray,  483;  and  see  Udall  v.  School  Dist.  43 
Vt.  588. 

4  "VVooldridge  r.  Rickert.  33  La.  An.  236  ;  Rogers  v.  Stevenson,  16 
Minn.  70  ;  Zantzinger  v.  Bibble,  36  Md.  36  ;  and  see  ilea  v.  Richards, 
56  A  hi.  3UC. 

5  Jolinson  v.  Bishop,  1  Woolw.  329  ;  AVard  v.  Jenkins,  10  Met.  586  ; 
generally  Hoover  v.  Robinson,  3  Xeb.  440  ;  Wooldridge  ?•.  Rickert.  33 
I.a.  An.  2;J6  ;  Stevens  v.  Mech's  Bank,  101  Mass.  110  ;  Otis  v.  Hadley, 
111  Mass.  lOo  ;  Rohrer's  Appeal,  62  Pa.  St.  501 ;  McKiernan  v.  King,  2 
Mont.  ,.} :  lullis  v.  Miller,  13  Hun,  364  ;  Mann  v.  Flower.  25  Minn.  -W  ; 
and  s;^e  Norton  v.  Boyd,  3  How.  4:57;  Pavson  ?-.  Dietz,  2  Dill.  505; 
?i""^';V.  ^^"y^^*""'  '■•  i'f'iitecost,  129  Mass.  332 ;  Brigham  r.  Clafiin,  31 
A\  IS.  CU  ;  \  oorhees  v.  Frisbie,  7  Alb.  L.  J.  69. 

6  Bean  v.  Brookmire,  1  Dill.  1.52. 

7  .ToJinson  v.  Helmstadter,  30  N.  J.  Eq.  126  ;  Ward  v.  Jenkins,  10 
Met.  .)V!;  Cook  v.  Whipple,  55  N.  Y.  165;  and  see  Trimble  r.  Wood- 
head,  Krj  I .  «.  049. 

8  McMaster  v.  Campbell,  41  Mich.  51G  ;  Trimble  r.  Woodhead.  102 
L.  S.  049. 

,.  ^.  ^r^'^Iiister  V.  Campbell,  41  Mich.  516  ;  Trimble  v.  Woodhead,  102 
L.  S.  W.» ;  and  .see  Dixon  v.  Dixon,  81  X.  C.  329. 

10  Gleiiny  r.  Langdon,  98  U.  R.  20. 

11  McMaster  r.  Campbell,  41  Mich.  516. 


155  BANKEUPTS  A^-D  INSOLVENTS.  g  64 

12  Cady  V.  \Vhaling,  7  Biss.  438  ;  In  re  Gurney,  7  ELss.  ■41.> ;  Harvey 
V.  Crane,  2  Biss.  4S<7  ;  Robinsou  v.  Elliott,  22  Wall.  520  ;  but  Sft:  In  re 
Collins,  12  Bank.  Reg.  304. 

13  Stevens  v.  Mech's  Sav.  Bank,  101  Ma.s.s.  110  ;  Mavs  r.  Manf 
^'at'l  Bunk,  Ct  Pa.  St.  75  ;  Butler  v.  Mullen,  100  3Ias.s.  -154  ;  and  «ee 
Miller  v.  O'Brien,  9  Blatchf.  271. 

14  Sachs  V.  Kretz,  10  Hun,  9.5 ;  Parker  v.  Sanborn,  7  Grav.  193 ; 
Minot  V.  Thatcher,  7  Met.  3.52  ;  see  Trimble  v.  Woodheati,  102  L'!  S.ftlj, 

15  Johnson  r.  Bishop,  1  Woolw.  *25 ;  and  compare  Miller  v. 
O'Brien,  9  Blatchf.  271 ;  In  re  Clark,  4  Ben.  97. 

16  Xegley  v.  Jefifers,  28  Ohio  St.  96  ;  Ligon  v.  Allen,  56  Mi.ss.  636 ; 
Hampton  v.  Rouse,  22  Wall.  2G3  ;  Connor  v.  Exp.  Co.  42  (in.  ;w. 

17  Sawtelle  v.  Rollins,  23  Me.  197;  Connor  v.  Exp.  Co.  42  fJn.  38; 
Ramsey  v.  Fellows,  12  The  Reporter,  304  (58  X.  H.i:  Towle  v.  Kowe, 
12  The  Reporter,  l>il  (5S  X.  H.)  ;  but  see  Cannon  v.  Wellford,  22  Gratt. 

•196;  compare  Colher  v.  Hunter,  27  Ark.  75;  Alston  v.  Wlngfi.'ld,  .53 
(ra.  23  ;  Xoonan  v.  Orton,  34  Wis.  262  ;  Armstrong  v.  Adams,  6  Ala.  751. 
13  Cannon  v.  Wellford,  22  Gratt.  196  ;  Wellink  v.  Morris  ('.  Co.  4 
N.  J.  Eq.  3rn  ;  see  Merrill  v.  Tamanv,  3  Pa.  St.  433  ;  Pugh  >>.  Hollidav, 
3  Ohio  St.  287  ;  In  re  Clark,  4  Ben.  93  ;  Home  Ins.  Co.  v.  HollLs,  53  Ga. 

e.59. 

10  O'Xeil  V.  Dougherty,  46  Cal.  576  ;  but  see  Sedwick  v.  Cleveland, 
7  Paige,  291. 

20  Booker  v.  Adkins,  48  Ala.  530;  and  see  Alston  v.  Wingfield,53 
Ga.  23  ;  HiJl  v.  Bourcier,  29  La.  An.  842. 

g  54.  Bankrupts  continued. —Trustees  of  a  corporation 
have  no  power  to  direct  the  filing  of  a  petition  to  have  the  cor- 
poration declared  a  bankrupt,  such  power  vests  in  the  stock- 
holders.^ Unpaid  subscriptions  to  the  capital  stock  of  a 
corporation  are  part  of  its  assets,  and  upon  its  bankruptcy  pass 
to  the  assignee,  and  he  alone  is  the  person  to  sue  for  their 
collection ;  -  his  failure  to  sue  for  such  subscriptions  for  the 
psriod  of  two  years  from  the  date  of  liis  appointment  will  not 
give  creditors  the  right  to  bring  such  actions  in  their  own 
names.^  If  a  bill  in  equity  be  brought  by  one  of  several 
partners,  r.ll  the  partners  should  be  parties  whether  in- 
solvent or  not;  if  bankrupt  their  assignees  should  be  made 
parties  in  their  place.-*  So  where  a  bond  was  given  to  partners 
and  one  becomes  bankrupt,  suit  thereon  is  properly  brought  in 
the  name  of  the  solvent  partner  and  the  assignee  of  the  bank- 
rupt.^ In  suit  by  one  partner  against  a  co-partner  for  dissolu- 
tion of  the  co-partnership,  upon  the  bankniptcy  of  plaintiff 
being  shown,  hi?  assignee  will  be  allowed  to  be  substituted  as 
plaintiff.*^    In  the  application  of  a  member  of  a  bankrupt  firm 


g  54  "WHO  MAY  SUE  AND  BE  SUED.  156 

for  his  individual  discharge,  he  will  not  be  held  accountable 
for  the  acts,  ommissions,  or  frauds  of  his  co-partners  unless  he 
was  a  party  theretoJ  When  personal  property  of  a  bankrupt 
has  beun  regularly  sold  by  the  assignee,  the  purchaser  may 
maintain  suit  in  his  own  name  for  its  recovery,*^  even  against 
the  assignee  ;  ^  but  if  after  adjudication  of  bankruptcy  and  prior 
to  the  appointment  of  an  assignee  an  offer  is  made  for  the 
purchase  of  all  the  property  of  the  bankrupt,  which  offer  is 
accepted  by  the  creditors  and  reported  to  and  confirmed  by  the 
court,  the  title  of  the  bankrupt  to  the  property  is  not  thereby 
divested,  so  as  to  enable  the  purchaser  to  maintain  an  action 
at  law  thereon  in  his  own  name.i"  A  discharge  in  bankruptcy 
has  the  same  efftct  as  the  pajTuent  of  a  d.bt,  and  operates 
against  all  debts  provable  against  the  estate  (save  those  specially 
excepted),  and  existing  at  the  time  of  filing  the  petition  ;'i  to 
be  available,  however,  as  a  defense  to  a  suit  it  must  be 
pleaded. ^2  The  right  is  personal  to  the  bankrupt,  and  therefore 
tlie  assignee  cannot  intervene  in  a  suit  against  him  and  plead 
his  adjudication  or  discharge  as  a  gi'ound  for  staying  proceed- 
ings or  in  bar  to  the  action  ;  ^^  the  bankrupt,  however,  may  file 
the  plea  at  any  time  before  judgment.'*  If  the  discharge  is 
obtained  pending  an  appeal  to  the  supreme  court  upon  proper 
showing  made  therein,  the  court  will  order  his  discharge. '^ 
The  court  in  which  judgment  is  rendered  is  the  only  one  where 
a  motion  can  be  made  to  amend  it,  and  the  fact  that  the 
defendant  therein  is  a  bankrupt  and  that  proceedings  in  that 
relation  are  pending  in  the  federal  courts  has  no  bearing  upon 
the  case.'*'  A  discharge  may  be  attacked  by  a  creditor  in  an 
action  in  a  State  court  to  recover  his  debt  for  a  fraud  which  is 
not  one  of  those  specified,  and  which  does  not  necessarily 
affect  its  vahdity  except  as  to  the  creditor." 

1  In  re  Lady  Bryan  Mining  Co.  2  Abb.  X.  C.  523. 

2  Lane  v.  Nickerson,  99  111.  2S7  ;  Langer  v.  Upton.  91  IT.  s.  fi2  ;  and 
see  Erwm  v.  V.  .s.  97  U.  8.  392  ;  Glenny  v.  Langdon,  98  U.  S.  20. 

3  Lane?'.  Nickerson,99  111.288;  and  see  Trimble  Woodhead,  102 
L .  .S.  647  ;  McMaster  v.  Campbell,  41  Mich.  .516. 

4  Fuller  v.  Benjamin,  23  Me.  2.>5. 

>r  \'  K^^^  v.  Ringgold,  0  Ark.  5.51 ;  Murray  v.  Murray,  5  Johns.  Ch.  70  ; 
Me>.  utt  r.  King,  59  Ala.  600. 


157  BAJN-KHrPTS   AND   INSOL\'ENTS.  \  55 

6  In  re  Clark,  4  Ben.  92. 

7  In  re  Heller,  13  The  Reporter,  132. 

8  Jewett  V.  Preston,  27  Me.  403  ;  Uflall  v.  School  IMst.  4S  Vt.  TM  : 
Mimms  v.  Swartz,  37  Tex.  13. 

9  Ives  V.  Tregent,  29  Mich.  391 ;  but  .see  Leach  v.  Greene,  116  Mass. 
536. 

10  Ligon  V.  Allen,  56  Mi.ss.  636  ;  Hampden  v.  Rou.se,  22  Wall.  273 ; 
Zautzinger  v.  Ribble,  4  Bank.  Reg.  728. 

11  Miller  v.  Chandler,  29  La.  An.  92  ;  Seymour  r.  Street.  5  Neb.  ai ; 
Hennequin  v.  Clews,  77  X.  Y.  423  ;  Mitchell  v.  Sinerleterrv.  1!»  Ohio, 
293  ;  Halliburton  v.  Carter,  55  Mo.  346  ;  compare  Jones  i-.  ilus.sell,  44 
Ga.  462. 

12  Roberts  v.  Weiler,  55  Miss.  252 ;  Jones  v.  Coker,  53  Miss.  1!W ; 
compare  Pearce  v.  Foreman,  29  Ark.  566  ;  and  see  Ludeliug  v.  Felton, 
29  La.  An.  720  ;  Bell  v.  Cunningham,  81  X.  C.  81. 

13  Hijo  V.  Hoffman,  29  La.  An.  23. 

14  Block  V.  Fitche,  33  La.  An.  1094  ;  Bell  v.  Cunningham,  81  N.  C. 
84  ;  Finney  v.  Mayer,  61  Ga.  500. 

15  Haggerty  v.  Morrison.  59  Mo.  324  ;  compare  Carpenter  v.  Tur- 
rell,  100  Mass.  450  ;  Loring  v.  Eager,  3  Gush.  183. 

16  Woolfolk  V.  Giiun,  45  Ga.  120. 

17  Poillon  V  Lawrence,  77  X.  Y.  211  ;  compare  Black  v.  Blazo,  117 
Mass.  17  ;  Thurmond  v.  Andrews,  10  Bush,  400. 

§  55.  Insolvents,  actions  relating  to  estates  of.  —An  alien 
residing  within  the  limits  of  a  State  is  entitled  to  the  Ixn- 
efifc  of  its  insolvent  laws.^  After  surrender  of  his  i)roperty, 
and  the  appointment  of  an  assignee,  the  insolvent  debtor  has 
no  capacity  to  appear  in  court  in  relation  to  the  surrendered 
property. 2  If,  however,  the  plaintifif  in  a  pending  suit  is  de- 
clared an  insolvent  debtor,  it  may  still  be  maintained  in  his 
name.^  When  one  of  two  obligees  upon  a  replevin  bond  is  in- 
solvent, and  an  assignee  is  chosen  subsequently  to  its  execu- 
tion, suit  thereon  must  be  in  the  name  of  the  solvent  obligee 
alone.*  Where  two  parties,  one  of  whom  is  insolvent,  obtain 
a  judgment  against  a  third,  who  holds  a  judgment  against 
the  insolvent,  equity  will  permit  a  set-off  to  the  extent  of  the 
interest  of  the  insolvent.^  The  i^urchaser  of  a  note  from  tlie 
assignee  of  the  insolvent  may  maintain  a  suit  thereon  in  the 
name  of  the  insolvent  against  the  maker,  if  the  insolvent  inter- 
pose no  objection,  although  the  note  is  not  indorsed  cither  by 
the  assignee  or  insolvent.^  A  surety  upon  a  bond  may  file  a 
bill  against  a  counter-surety  to  enforce  plaintiff's  exoneration, 
although  he  may  not  have  paid  the  debt,  and  is  in  fact  insolv- 
Parties  —  14 


g  55  WHO   aiAY  SUE   AND   BE  SUED.  158 

cut.'  In  Ne^Y  York  a  single  stockholder  may  maiiitain  an 
acticu  to  dissolve  the  corporation,  and  wind  up  its  affairs.^  To 
a  bill  in  equity  by  an  insolvent  corporation  against  their  as- 
signee, and  purchasers  of  their  real  estate  from  such  assignee, 
to  vacate  the  proceedings  in  insolvency,  it  is  no  objection  that 
one  of  their  creditors  who  claims  the  land  under  a  later  deed 
from  the  corporation  also  joins  as  plaintiff.^  One  who  holds  a 
joint  aiid  several  note  given  by  partners  in  their  partnership 
name  may  prove  his  claim  against  the  joint  estate  of  the  firm, 
and  the  individual  estate  of  the  partners,  they  being  insolvent 
in  both  capacities.!"  Two  persons,  partners,  not  having  adopted 
partnership  name,  executed  a  note  in  their  individual  names, 
the  money  obtained  thereon  was  used  in  the  partnership  busi- 
ness, they  are  insolvent  and  have  estates,  both  as  partners  and 
as  individuals,  the  holder  of  note  may  prove  claim  against 
either  firm  or  separate  estate,  but  not  against  both."  After 
dissolution  of  partnership  one  of  the  two  partners  consigned 
firm  goods  to  an  agent  to  sell  and  apply  proceeds  to  payment 
of  a  firm  debt,  he  then  becoming  insolvent,  was  properly  made 
a  defendant  with  his  assignee  in  an  equitable  action  by  the 
solvent  partner  against  the  agent  in  pursuance  of  Revised 
Statutes,  ch.  118,  g  43.12  Upon  a  bill  between  partners  for  a 
settlement  of  the  affairs  of  the  partnership  after  dissolution, 
the  insolvency  of  defendant  will  entitle  complainant  to  the 
appointment  of  a  receiver.!^  When  an  insolvent  lessee  has 
failed  to  pay  his  rent,  and  his  assignee  has  been  appointed,  the 
latter  is  the  proper  person  to  make  defendant  in  a  suit  for  a 
dissolution  of  the  lease. i*  After  a  discharge  in  insolvency  the 
insolvent  cannot  sue  in  his  own  name  upon  a  cause  of  action 
claimed  to  have  existed  prior  to  the  insolvency  proceedings ;  ^^ 
nor  can  he  plead  his  discharge  in  bar  to  a  suit  brought  against 
him  by  a  citizen  of  another  State, i*^  unless  the  latter  voluntarily 
submitted  himself  to  the  jurisdiction  of  the  insolvency  court. ^^ 
Pending  an  action  for  trover  defendant  gave  a  bond  for  the 
production  of  the  chattel,  and  subsequently  obtained  his  dis- 
charge in  insolvency,  the  plaintifi"was  allowed  to  proceed  to 
judgment  in  the  action  of  trover. i*^    In  a  suit  by  a  bank  against 


159  BANKRUPTS  AXD  INSOLVENTS.  ^  65 

its  cashier  and  sureties  upon  his  ofiacial  bond,  upon  the  doath  of 
the  insolvent  cashier  the  cause  may  pi'oceed  to  judgment  against 
the  sureties  alone.^^ 

1  Judd  V.  Lawrence,  1  Cush.  ^U. 

2  :McIntire  v.  \\Tiiting,  7  La.  273  ;  Bank  of  LouLsana  r.  Wilson,  19 
La.  An.  2. 

3  Beshine  v.  Shipperson,  17  Gratt.  480. 

4  Brown  v.  Brigham,  5  Allen,  .583 ;  see  Dunlap  v.  Burnhani,.'i8  Mp. 
112. 

5  Fulkerson  v.  Davenport,  70  Mo.  542. 

6  Stoma  v.  Hubbard,  7  Cush.  598;  and  see  Robinson  v.  Hall,  H 
Gray,  483. 

7  Ferrer  v.  Barrett,  4  Jones  Eq.  456 ;  see  Kno.x  r.  Jordan,  5  Jonea 
Eq  176. 

8  Masters  v.  Life  Ins.  Co.  6  Daly,  458 ;  and  see  Van  Pelt  »•.  U.  S. 
Met.  Sh'g  Co.  13  Abb.  Pr.  N.  S.  327  ;  compare  Life  Ins.  Co.  r.  CoghiU, 
30  Gratt.  73  ;  People  v.  Ins.  Co.  74  X.  Y.  178. 

9  Cheshire  Iron  Works  v.  Gay,  3  Gray,  53.3. 

10  Ex  parte  Nason,  70  Me.  36G  ;  and  see  Borden  r.  Cuyler.  10  Cush. 
476  ;  Ex  parte  Farnsworth.  1  Low.  4!)7  ;  compare  Ex  part*'  Holbrook 
&  Co.  2  Low.  2.59  :  Mead  v.  Xat.  Bank  of  FayettHville.  6  BIntchf.  IhI  ; 
In  re  Tesson,  9  Bank.  Reg.  379  ;  see  Marsh  »-.  Marsh,  9  Rob.  (,Lu.>  46. 

11  Ex  parte  First  Xat.  Bank  of  Portland,  70  Me.  378. 

12  Bartlett  r.  Parks,  1  Cush.  85. 

13  Randall  v.  Morrell,  17  X.  J.  Eq.  343  ;  and  see  Renton  r.  Chaplain, 
9  X.  J.  Eq.  63. 

14  Dubois  V.  Xiques,  14  La.  An.  427. 

15  Young  V.  Willing,  2  Dall.  27G. 

16  Stevenson  v.  King.  2  Cliff.  1 ;  and  see  Cook  »•.  Moffatt,  5  How. 
307:  Siurges  v.  Crowninshield,  4  Wheat.  122;  Ogden  v.  Saunders,  12 
Wheat.  254. 

17  Hawlev  v.  Hunt,  27  Iowa,«307  ;  Easterby  v.  Goodwin,  35  Conn. 
2S4  ;  WhitneV  v.  Whiting,  35  X.  H.  461  ;  Gilman  r.  Lockwood.  4  Wall. 
410:  Donellv?'.  Corvett.  7X.  Y.  503  :  Kelly  c.  Drury, 9  Allen,  2s  ;  Feloh 
r.  Bugbee,  4*8  Me.  10  ;  Beer  r.  Hooper,  :i2  Miss.  2.54  :  Crow  r.  Co<nis,  27 
Mo.  515  :  Beers  v.  Rhea,  5 Tex.  >io4  ;  compare  Stoddard  v.  Harrington, 
100  Mass.  87  :  Read  v.  Bennett,  23  Wis.  373. 

13    Green  v.  Foskett,  11  Rich.  :«3. 

10  Farmers'  Bank?-.  Polk,  1  Del.  Ch.  174  ;  but  compare  Starner  r. 
mderwood,  54  lud.  48. 


56  WHO  MAY  SUE  A>1>  BE  SUED.  160 


CHAPTER  YII. 

INFANTS,    INSANE   PEESONS,    IDIOTS. 

i  56.  Infants,  suits  by. 

2  57.  Infants,  suits  by,  continued. 

?  58.  Infants,  suits  against. 

?  5X  Infants,  suits  against,  continued. 

I  60.  Infants,  suits  against,  judgment,  etc. 

i  61.  Insane  persons,  idiots,  etc.,  suits  by. 

I  62.  Insaue  persons,  idiots,  etc.,  suits  against. 

g  56.  Infants,  suits  by.  —An  infant  may  sue  for  a  breach 
of  contract  of  employment  made  for  him  by  his  father ;  the 
rehnquishment  of  the  right  to  the  wages  by  the  father  may  be 
inferred  from  circumstances.^  A  minor  cannot  administer 
upon  the  estate  of  a  decedent,  nor  appoint  an  administrator.^ 
Where  a  mother  was  party  to  bill  to  marshal  the  assets 
of  her  father's  insolvent  estate,  and  set  up  a  debt  due 
her,  in  his  capacity  as  guardian,  and  before  final  decree 
died,  the  minor  lieirs  were  properly  allowed  to  assert  the 
right  by  petition  for  their  own  benefit  as  survivors.^  The 
afterborn  child  pretermitted  in  the  will  of  a  parent  may 
recover  from  each  devisee,  or.  from  the  purchaser  under  a 
devisee,  the  amount  such  devisee  is  bound  to  contribute,  with- 
out making  the  other  devisees  parties.*  X.  agreed  Avith  Z.  that 
his  horse  should  go  to  the  mare  of  Z.,  gratis,  provided  the  pro- 
duce should  be  the  property  of  A.,  an  infant,  the  property  in 
the  produce  was  vested  in  A.,  and  he  could  maintain  suit 
therefor  against  a  purchaser  from  Z.^  Generally  when  the 
riglits  of  an  infant  are  sought  to  be  enforced  in  an  action  at 
law,  such  action  should  be  brought  in  the  name  of  the  infant^ 
by  his  guardian,'  or  next  friend. ^  So,  also,  a  suit  in  equity  for 
a  legacy  due  a  minor  must  be  brought  in  his  name,  and  not  in 
that  of  liis  guardian  ;  if  the  legacy  be  a  debt  against  the  guar- 
dian, and  one  object  is  to  obtain  an  injunction  against  its  col- 


161  I>TA>-TS.  ^  56 

lection,  the  guardian  may  also  be  made  a  party.**  As  a  rule  an 
infant  may  sue  by  next  friend,  even  though  ho  has  a  guardian, 
if  he  does  not  dissent ;  and  if  the  suit  is  necessary  and  projx.r, 
he  may  maintain  the  action  notwithstanding  such  dissent. i"  No 
relationship  need  exist  between  the  infant  and  his  next  friend.'* 
Nor  need  permission  of  the  court  first  be  obtained  to  bring  the 
action.i2  An  infant  married  woman  properly  sues  in  reference 
to  her  separate  property  by  a  guardian  ad  Utem  or  next 
friend  ;i^  but  the  next  friend  will  not  be  allowed  to  maintain 
an  action  in  the  name  of  an  infant  wife  against  the  wish  of  the 
infant  husband.^*  The  next  friend  is  no  party  to  a  suit  in  tlie 
technical  sense  of  the  term,i^  although  he  is  responsible  for 
costs, ^6  i^iii  ig  considered  an  officer  of  the  court,  specially 
appointed  by  it  to  look  after  the  interests  of  the  infant  in  whose 
behalf  he  acts  ;  ^'  he  controls  the  action  and  directs  the  man- 
ner of  its  management ;  ^^  he  may  employ  an  attorney  to  con- 
duct the  suit,^**  but  may  not  receive  the  amount  recovered  ly 
the  infant  unless  specially  authorized. ^"^  Any  person  may  act 
as  7iext  friend  to  an  infant,  no  matter  what  his  means  and 
standing  may  be,  provided  he  can  give  security  for  cost ;  ^^  ho 
may  be  changed  by  the  court  at  its  pleasure,  or  may  be  rcquii-od 
to  give  such  bond  as  it  deem  necessary.22  An  action  cannot  be 
maintained  in  forma  pauporis  for  the  infant  by  his  next 
friend  ;''^^  in  such  case,  however,  the  infant  may  sue  alone.-* 
When  the  pleading  fails  to  show  that  tlie  parties  for  whom  one 
assumes  to  sue  are  infants,  it  is  not  ground  for  demurrer ;  if 
they  are  of  age  the  name  of  the  next  friend  maybe  stricken  out 
on  motion. -a  A  minor  under  the  age  of  puberty  cannot  appear 
in  court  by  a  curator  ad  litem;  above  that  age  he  must  be  so 
assisted.'*^  In  proper  cases  an  infant  may  sue  hy  guardian  ad 
litem,  anl  generally  there  is  no  objection  to  the  appointment 
of  his  general  guardian  as  such.27  TVhen  an  infant  is  rtpre- 
Bented  by  guardian  ad  litem,  he  will  be  directed  to  employ 
counsel  to  be  approved  by  the  court. ^^  When  an  infant  sues 
by  guardian  the  pleading  should  show  due  appointment.  ="• 
Thero  appeal's  to  be  no  material  difference  between  a  guardian 
ad  Utem  and  a  next  friend.^*"    The  chief  difference  being  the 


g  56  WHO   STAY   SUE   AND   BE   SUED.  162 

latter  is  the  curator  of  au  iufaut  plaintiflf,  the  former  of  an 
infant  defendant.^^ 

1  Benziger  v.  Miller,  oO  Ala.  207  ;  and  see  Tillotson  v.  McCrillis, 
n  V't.  -JTi);  compare  Caden  v.  Farwell,  98  Mass.  138;  Kobinsou  v. 
Weeks,  53  Me.  IIXJ. 

2  Ilea  V.  Englesing,  56  Miss.  465. 

3  I'olhill  V.  Xeal,  50  Ga.  148. 

4  llaskius  v.  Spiller,  1  Dana,  175. 

5  M'Carty  v.  Blevins,  5  Yerg.  196. 

6  Longstreet  r.  Tilton,  Coxe,  38 ;  Carkskadden  v.  M'Ghee,  7  Watts 
it  S.  141  :  ."^irude  ?-.  Clark,  12  Ala.  G20;  Raymond  v.  Sawyer,  37  Me. 
4()7  ;  J{()berts  r.  :Maddox,  5  Ark.  51  ;  compare  Osburn  v.  Farr,  42  Mich. 
i;34  ;  but  see  Kicard  v.  C.  P.  Ky.  Co.  15  2s  ev.  167. 

7  Wilson  V.  :Nuselt,  12  Bush,  223 ;  Carkskadden  v.  M'Ghee,  7 
Watts  ife  S.  141  ;  Bradlev  v.  Amidon,  10  Paige,  235  ;  Cook  v.  Adams,  27 
Ala.  2!t5  ;  Sutton  v.  Nichols,  20  Kan.  45 ;  Deford  v.  State,  ;iO  Md.  199  ; 
see  Bond  v.  Dillard,  50  Tex.  309. 

8  Hooks  V.  Smith,  18  Ala.  339  ;  Anderson  r.  Watson.  3  Met.  rKy.) 
510  ;  Strode  v.  Clark,  12  Ala.  620 ;  Klefful  v.  Bullock,  8  Neb.  339 ;  Hurr 
V.  Southern  Rv.  Co.  40  Miss.  304  ;  Perkins  v.  AVright,  37  lud.  27  ; 
Brown  v.  Hull,  16  Vt.  676 ;  Judson  v.  Blanchard,  3  Coun.  584. 

9  Simpson  ^\  King,  1  Ired.  Eq.  13. 

10  Thomas  v.  Dike,  11  Vt.  275  ;  see  Schuck  v.  Hager,  24  Minn.  343, 

11  Burnes  r.  Wilson,  1  Mo.  App.  182  ;  Evans  v.  Mason,  1  Lea,  26. 

12  Barwick  v.  Racklev,  45  Ala.  218  ;  and  see  Resor  v.  Resor.  9  lud. 
3-18  ;  Klaus  v.  State,  54  Miss.  646  ;  Bethea  v.  McCall,  3  Ala.  451. 

13  Ex  parte  Post,  47  Ind.  142  ;  see  Adams  v.  Hannon,  3  Mo.  222; 
Dugas  V.  Gilbean,  15 La.  An.  581 ;  and  compare  Hopkins  v.  Vcrgiu,  11 
Bush,  677. 

14  Anderson  i\  Anderson,  11  Bush,  330. 

15  Bartlett  v.  Batts,  14  Ga.  540  ;  B.  <fe  O.  Ry.  Co.  v.  Fitzpatrick,  36 
Md.  624  ;  but  see  Crosseu  v.  Dryer,  17  Mass.  222. 

16  B.  &  O.  liy.  Co.  V.  Fitzpatrick,  36  Md.  624  ;  Klaus  r.  State,  54 
Miss.  (546  ;  Kleffel  v.  Bullock, «  Neb.  ;i42  ;  Sutton  v.  Nichols,  20  Kan. 
4(i ;  but  see  Smith  ?•.  Floyd,  1  Pick.  276 ;  Crandall  v.  Slaid,  11  Met.  283  ; 
Isaacs  V.  Boyd,  5  Port.  3y3. 

17  B.  &  O.  Ry.  Co.  r.  Fitzpatrick,  36  Md.  624;  Klaus  v.  State,  54 
3Iiss.  646 ;  Isaccs  v.  Boyd,  5  Port.  393  ;  Bartlett  v.  Batts,  14  Ga.  540. 

13    Sutton  V.  Nichols,  20  Kan.  46. 

19  B.  &.  O,  Ry.  Co.  v.  Fitzpatrick,  36  Md.  624. 

20  Isaacs  v.  Boyd.  5  Port.  393  ;  Klaus  v.  State,  54  Miss.  646  ;  compare 
B.  &  O.  Ry.  Co.  V.  Fitzpatrick,  36  Md.  624 ;  and  see  Miles  v.  Kaigler,  10 
Yerg.  17  ;  Smith  v.  Redus,  9  Ala.  101. 

21  Miles  V.  Kaigler,  10  Yerg.  17  ;  Evans  v.  Mason,  1  Lea,  27  ;  Green 
V.  Harrison,  3  Sneed,  132. 

22  Klaus  V.  State,  54  Miss.  646  ;  and  see  Green  v.  Harrison,  3  Sneed, 
132  ;  Hood  v.  Pearson,  67  Ind.  370. 

23  Green  v.  Harrison,  3  Sneed,  131. 

24  Hood  V.  Pearson,  67  lud.  370 ;  compare  Sutton  v.  Nichols,  20 
Kan.  45. 


163  IXFANTS.  ^  67 

25  Lancaster  v.  Gould,  4G  Ind.  401. 

26  Heno  r.  Heno,  0  Martin,  Wo;  Gassoit  v.  Gicquel,  7  MarMn.  II.'J ; 
and  see  Petrle  v.  Wofford,  3  La.  An.  562  ;  Beauchanip  v.  Whiaingtori. 
lOLa.  An.  647. 

27  Legelken  v.  Meyer,  14  Hun,  oM  ;  and  see  Thoma.s  v.  Bennett,  56 
Barb.  I'M  ;  Price  v.  Ins.  Co.  17  Minn.  500. 

2S    Colgate  r.  Colgate,  23  X.  J.  Eq.  :J83. 

29  Grantraan  r.  Thrall,  44  Barb.  174  ;  Stanley  r.  Chappe!I,H  Cowen, 
238  ;  and  compare  Verrier  v.  Verrier,  7  Phila.  618. 

30  Bartlett  v.  Batts,  14  Ga.  541. 

31  H"ft  V.  McGill,  3  Pa.  St.  2&1 ;  and  see  Bryant  v.  Livermore,  20 
Minn.  313. 


?  57.  Infants,  suits  by,  continued.  — A  suit  commenced 
aud  prosecuted  by  an  infant  alone  is  not  absolutely  void,  and 
althoupfh  defective  in  wanting  a  next  friend,  the  defect  before 
verdict  is  amendable, ^  and  after  verdict  is  cured. ^  Admiralty 
courts  allow  an  infant  to  recover  wages  in  bis  own  name  whtn 
tlie  contract  upon  which  he  sues  was  made  jxirsoaally  with 
him,  and  it  does  not  appear  that  he  has  parent,  guardian,  or 
tutor  to  receive  his  earnings.^  When  pending  the  action  the 
infant  attains  majority  he  may  be  substituted  as  sole  plaintiff;* 
but  it  is  error  to  make  him  joint  plaintiff  with  his  guari'.ian.* 
A  guardian  appointed  by  the  probate  court  may  in  this  State 
(Alabama),  sue  in  his  own  name  upon  a  note  payable  to  him 
and  given  for  the  hire  of  his  ward's  property.''  In  Illinois  and 
several  other  States  he  may  sue  in  his  own  name  as  guardian 
for  all  personal  property  and  demands  due  the  ward,  but  may 
bring  no  suit  in  relation  to  his  ward's  real  estate.^  A  guardian 
in  socage  has  the  custody  of  the  lands  of  the  infant,  and  for 
that  reason  may  lease  it,  avow  in  his  own  name,  and  bring 
trespass  or  ejectment  in  his  own  name.*=  In  Massachusetts  a 
writ  of  entry  must  be  brought  in  the  name  of  the  infant  by  his 
next  friend.^  Unlawful  detainer  for  ward's  lands  should  be 
brought  in  the  name  of  the  ward.^*^  An  infant  cannot  bring  a 
suit  in  partition  by  next  friend, ^^  the  guardian  if  there  be  one 
must  bring  the  suit;  if  there  be  none,  the  court  will  upon 
proper  application  appoint  one.^^  In  a  suit  for  partition  insti- 
tuted on  behalf  of  infants,  where  it  appeared  that  their  father, 
a  tenant  by  courtesy,  was  a  defendant,  and  consenting  that  the 


2   57  "W^O   MAY   SUE  AND   BE  SL'ED.  164 

land  coukl  not  be  divided,  but  would  have  to  be  sold,  that  it 
was  valuable  on  account  of  coal  underlying  the  surface,  and 
that  from  its  position  its  value  was  likely  to  increase,  the  peti- 
tion was  denied.^=*  After  attaining  majority  the  infant  may 
maintain  an  action  to  set  aside  his  contract  of  sale  of  interest 
in  real  property,  and  for  partition  of  the  premises.^-*  Courts  of 
equity  have  full  jurisdiction  over  the  persons  and  estates  of 
infants,  and  in  the  exercise  of  that  jurisdiction  will  cause  to  be 
done  whatever  is  necessary  to  preserve  their  estates,  more 
especially  when  the  alleged  errors  are  proceedings  by  the 
guardian  in  fraud  of  the  rights  of  the  ward.^-^  At  common  law 
an  infant  could  not  maintain  an  action  against  his  guardian 
until  he  became  of  age  ;  ^^  nor  for  the  use,  income,  or  profits 
of  his  property  until  a  settlement  had  been  obtained  and  bal- 
ance struck ; ^'  he  might,  however,  by  his  next  friend  call  his 
guardian  to  account  in  chancery.^'^  A  guardian  is  not  bound 
to  have  the  money  ready  to  pay  his  ward  when  he  comes  of  age, 
but  in  settlement  may  transfer  a  bond  which  he  properly  took, 
and  has  not  made  his  own  by  fraud  or  laches  ;  ^^  if  he  convert 
land  script  into  money  by  investing  it  in  land  for  himself  and 
others,  and  accounts  to  the  ward  for  the  script,  and  interest 
from  the  time  of  the  investment,  he  will  not,  provided  he  acted 
in  good  faith,  be  charged  as  trustee  of  the  land  purchased.^" 
An  action  against  a  former  guardian  upon  his  official  bond 
should  be  brought  in  the  name  of  the  infant  as  relator,  by  his 
next  friend,  and  not  in  the  name  of  the  present  guardian. ^i 
The  ward  may  proceed  against  the  guardian  alone  without 
joining  the  sureties ;  ^^  but  an  action  at  law  cannot  be  main- 
tained upon  the  bond  until  the  liability  of  the  guardian  has 
been  determined  by  a  court  of  competent  jurisdiction  ;  2=5  nor 
can  he  be  sued  for  the  debt  of  his  Avard.^*  As  a  general  rule 
infant  plaintiffs  are  as  much  bound  by  a  decree  as  a  person  of 
full  age ;  -^  but  it  must  not  be  obtained  upon  admissions,  it 
must  be  obtained  upon  full  proofs.^ti 

1  Blood  i\  llarriiicjton.  S  Pick.  5.>4 ;  Young  v.  Young,  3  IST.  H.  345 ; 
Grf'oiiman  r.  (.'olu'e,  61  Ind.  202  ;  Smart  v.  Haring,  14  Hun,  278  ;  Jack 
V.  Davis,  2;)C}a.  220. 

2  Smith  r.  Carney,  127  Mass.  131 ;  Bartlett  v.  Batts,  14  Ga.  540  ;  but 
see  McGrlffln  v.  Stout,  Coxe,  92. 


165  IXFAXTS.  j  57 

3  Scliooner  Davi<  Faust,  1  Ben.  184  ;  Wicks  v.  Kills,  I  .V.,U.  A«'.ni, 
444. 

4  Ricord  v.  C.  P.  T.y.  Co.  15  Nev.  17o. 

5  Ki'jord  v.  C.  P.  Pvj'.  Co.  15  Nev.  175;  sop  Smart  r.  iriirlii;:.  M 
Hun,  278  ;  contra,  W'illiums  r.  Williams,  07  ilo.  O'D. 

G  Ilightower  v.  Maull,  50  Ala.  405  ;  Cox  v.  ^V^lliamson,  1 1  Ala.  :w» ; 
compare  Price  v.  Ins.  Co.  17  Minn.  500. 

7  Muller  v.  Beuner,  69  III.  109  ;  and  see  Longmire  v.  Pilklnton,  Z7 
Alj,.  2J7  ;  Jordan  v.  Donahue,  12  R.  I.  199. 

8  Hughes  Minors  Appeal,  53  Pa.  St.  503;  Holmos  v.  S,cl  v.  17 
Wend.  77;  and  see  Miller  1'.  Benner,  6')  111.  lo);  Pond  r.  Ciirii--,  7 
Wond.  46  ;  Cagger  v.  Lansing,  64  X.  Y.  425  ;  compare  Heft  r.  M-'  i'll, 
3  Pa.  St.  26;5 ;  O'Byrne  v.  Feeley,  61  Ga.  81  ;  Zirkee  v.  McCue,  28  (;rait. 
52G. 

9  Jennings  v.  Collins,  99  Mass.  32 ;  compare  Carr  v.  Spaungel,  4 

M.x  App.  235. 

10  Vincent  v.  Starks,  45  Wis.  4G3. 

11  Mitchell  V.  .Tones,  59  Mo.  4Zd  ;  but  see  Struppman  v.  Muller,  52 
How.  Pr.  214;  Hoare  r.  Harris,  11  111.  25;  Bowles  v.  McAllen,  I'J  111. 
30  ;  contra,  Strange  v.  Gunn,  56  Ala.  611. 

12  Mitchell  v.  Jones,  50  Mo.  4Z3  ;  and  see  Larned  %\  Honshaw,  37 
Mo.  453  ;  compare  Bowles  r.  McAllen,  IG  111.  C);  see  also  Zirklo  f. 
McCue,  26  Gratt.  525 ;  Hutton  v.  Wiiliams,  '.'^  ALi.  513. 

13  Hartman  v.  Hartman,  53  111.  104. 

14  Gillespie  v.  Bailey,  12  W.  Va.  97;  Arnold  v.  Arnold,  11  W.  Vx 
443. 

15  Lj'nch  r.  Rotan,  30  III.  19  ;  Linton  v.  Walker,  8  Flu.  153;  and  s-e 
Sheahan  v.  Judge,  42  Mich.  63. 

16  Linton  v.  Walker,  8  Fla.  15:J ;  Heilman  r.  Martin,  2  Ark.  ifi7  ;  and 
see  Gibbs  i'.  Lum.  23  La.  Au.  527. 

17  Chapman  v.  Chapman,  32  Ala.  107;  and  see  Ryan  v.  Galhnan,  12 
Rich.  3.J6 ;  compare  Stroup  v.  State,  70  Ind.  4^>. 

18  Heilman  v.  Martin,  2  Ark.  1G7;  Johnson  v.  James.  41  Ga.  5:7; 
and  see  Storthoff  v.  Reod,  32  :n.  J.  Eq.  214  ;  Linton  r.  Walker,  »  Fla. 
153  ;  Redan  v.  Robb,     Ohio,  228. 

19  Goodson  v.  Goodson,  G  Ired.  Eq.  241  ;  see  Williamson  r.  Wil- 
liams, 6  Jones  Eq.  6  '  ;  Storthoff  r.  Reed,  32  X.  J.  Eq.  214. 

20  Davies  v.  Lowr  3y,  15  Ohio,  657. 

21  Barnet  v  Lommonwealth,  4  Marsh.  J.  J.  383;  Barnet  v.  Com- 
monwealth, 5  Marsh.  J.  J.  28G  ;  see  Horton  r.  Horton,  4  Ired.  Eq.  54. 

22  Hailey  v.  Boyd,  64  Ala.  401. 

23  Hailey  v.  B,vd,  64  Ala.  401;  and  see  Gibbs  ?-.  Lum,  23  L-u  An. 

527  ;  compare  Abbott  i'.  Kensett,  33  Conn.  511  ;  Stroup  v.  State ,  70  Ind. 
498. 

24  Willard  v.  Fairbanks,  8  R.  I.  4  ;  compare  Raymond  v.  Sawyer, 
37  Me.  407  ,  Donahoe  v.  Emery,  9  Met.  63. 

25  Becton  v.  Becton.  3  Jones  Eq.  422  ;  Zirkle  v.  ^fcCue,  2r.  Gnitt. 

528  ;  and  see  Clark  v.  Piatt.  30  Conn.  285. 

26  Chandler  v.  McKinney,  6  Mich.  219 ;  Cooper  r.  Mi'.ylu-w.  *] 
Mich.  52s  ;  but  see  Greenwood  v.  New  Orleans,  12  La,  .\n.  427. 


2  58  WHO  MAY   SUE  AXD  BE   fUED.  166 

2  58.  Infants,  suits  against. — A  suit  against  an  infant 
must  bo  against  liiui  in  liis  proper  person  ;  ^  be  cannot  appear 
and  d^'fetul  tbc  action  bimself,  nor  can  be  appoint  an  attorney 
to  do  so  for  bim  ;  ^  but  must  appear  eitbcr  by  guardian, =*  or  by 
a  guardian  ad  litem  appointed  by  tbo  court. ■*  He  bas  no  power 
to  waivo  service  of  process, =  tbe  statute  in  tbat  respect  must  bo 
strictly  followed;^  ncitbcr  may  bis  guardian  nor  guardian  ad 
litem  waive  sucb  service  for  bim ;  ^  on  erroi'  tbe  fact  of  such 
service  must  affirmatively  appear.^  So  also  until  properly 
served,  a  guardian  ad  litem  cannot  be  appointed  to  rcioresent 
bim  in  tbe  suit.^  Y\lien  a  guardian  ad  litem  is  appointed  for 
tbe  infant,  tbe  appointment  sbould  appear  of  record,^"  but 
appearance  and  defense  by  tbe  natiiral  guardian  may  be  sbown 
by  parol, Ji  and  is  equivalent  to  an  appointment  and  defense  by 
guardian  ad  litem,  ;^-  if  tbe  infant  bas  no  general  guardian  a 
guardian  ad  litem  must  be  appointed  for  bim.^^  So  if  tbe  inter- 
ests of  tbe  guardian  are  adverse  to  tbe  infants,  or  be  fail  to 
appear  and  defend  tbe  suit ;  ^*  and  if  no  motion  is  made  by  tbe 
dofendant  for  tbat  purpose,  the  duty  devolves  upon  tbe  plaintiff 
to  bave  tbc  appointment  madc.^^  rj\-^Q  power  to  appoint  guar- 
dians ad  litem  is  discretionary  witb  tbe  court,  and  as  a  rule  not 
subject  to  revision. iiJ  He  sbould  bo  a  disinterested  person ; " 
and  if  upon  appeal  the  interests  of  tbe  infant  demanded  it,  the 
appellato  court  would  have  authority  to  appoint  a  new  one.'*^ 
"When  tbo  record  fails  to  show  tbat  a  part  of  tbe  defendants  are 
minors,  an  order  made  appointing  a  guardian  ad  litem  for  the 
minor  defendants  without  naming  them  is  void.^**  Tbe  guar- 
dian ad  litem  is  not  a  party  to  the  action  ;  2"  he  is  not  liable  for 
costs.'-^i  nor  can  be  waive  any  of  the  rights  of  the  infant  whom 
he  rr  presents. ■''^  He  has  but  one  duty,  and  tbat  is  to  make  as 
vigorous  a  defense  of  the  rights  of  the  infant  as  the  nature  oi 
the  case  admits. ^^  His  authority  is  to  protect,  and  tbe  court 
will  not  suffer  his  ward  to  be  prejudiced  either  by  bis  laches  or 
Lis  admissions.^*  When  an  infant  is  sued  the  time  prescribed 
by  rule  of  court  for  filing  dilatory  pleas  dates  not  from  tbe 
time  of  tlic  commencement  of  tbe  term  at  which  the  suit  is 
entered,  but  from  the  appointment  of  the  guardian  ad  litem  to 


167  INFANTS.  §  68 

dc'fend  the  suit.^a  An  infant  cannot  bind  liis  rights  In-  a  sub- 
mission to  arbitration, ^fi  even  though  a  guardian  ml  litem  is 
appointed  to  represent  him,  nor  can  such  guardian  bind  the 
infant  by  such  proceeding.  2' 

1  Oliver  r.  McDuffie,  28  Ga.  524  ;  Jack  v.  Davis,  29  Ga.  220  ;  Tiu-ker 
V.  Bean,  65  Me.  35:3  ;  Wakefield  v.  Marr,  65  Me.  U\. 

2  FuUer  r.  Smith,  4')  Vt.  2.>4  ;  Wrisleys  v.  Kenyon,  2S  Vt.  7  ;  Wins- 
ton V.  McLendon,  4.3  Miss.  2.57  ;  and  see  Wright  v.  McNatt,  4U  Tex. 
42J. 

3  Oliver  v.  McDuffie,  28  Ga.  524  ;  Foulkes  v.  Young,  21  X.  J.  U 
44) ;  compare  Brown  v.  Leverson,  12  HeLsk.  390 ;  and  .see  Tncker  v. 
Bean,  65  Me.  ;>>3. 

4  Winston  7'.  McLendon,  43  Miss.  257;  Oliver  v.  McDuffie,  2^  Ga, 
524  ;  Loyrl  i\  Malone,  23  IJl.  47  ;  Koacli  r.  Hix,  57  Ala.  .57S  ;  Cook  v. 
Totten,  6  Dana,  lOJ  ;  Pucket  v.  Johnson,  45  Tex.  5.50. 

5  Ingersoll  v.  Mangam,  84  X.  Y.  624  ;  Carter  v.  Ingraham,  4:1  Ala. 
:  :  Winston  v.  McLendon.  43  Miss.  2-57;  Taylor  v.  Walker,  1  Jlei.sk. 

7  >>  ;  Burrus  r.  Burrus,  56  Miss.  100. 

6  Abdill  ?'.  Abdill,  26  Ind.  2SS  ;  Ingersoll  v.  Mangam,  8^1  X.  Y.  G25  ; 
Carter  v.  Ingraham,  43  Ala.  SI  ;  Price  v.  Winter.  15  Fla.  )04  ;  lirown 
)•.  Leverson,  12  Heisk.  330;  Clark  v.  Thompson.  47  111.  27;  Jones  v. 
Mason,  X.  C.  561 ;  Coster  v.  Bank  of  Georgia,  24  Ala.  6.5. 

7  AbdUl  V.  Abdill,  26  Ind.  2S3  ;  Good  v.  Xorley,  2S  lown,  l<>s  ;  Clark 
v.  Thompson,  47  111.  27  ;  contra,  Ma.sson  v.  Swan,  6  Heisk.  4-5.5. 

8  Abdill  V.  AbdiU,  25  Ind.  239. 

9  Ingersoll  v.  Mangam,  84  X.  Y.  625  ;  Walker  v.  Hallett,  1  .Via.  .^HO  ; 
Preston  v.  Dunn,  25  Ala.  512  ;  Hendricks  v.  McLean,  18  Mo. :«  :  Price 
V  Crone,  44  Miss.  576;  Ingersoll  v.  Ingersoll,  42  Mi.s.s.  160;  Hodgt-s  r. 
Frazier.  31  Ark.  .59  ;  Erwin  v.  Carson,  54  Miss.  284  ;  Good  r.  Xorlev,  28 
Iowa,  W8  ;  see  also  Grav  v.  Palmer,  9  Cal.  6:iS  ;  Jones  v.  :Mason.  1  X.  C. 
.561 ;  Tavlor  r.  Walker,  1  Heisk.  730  ;  McDermaid  v.  Russell,  41  III.  4-Jl  ; 
compare  .Smith  v.  McDonald,  42  Cal.  487;  Gottendorph  r.  Gold- 
schmidt,  83  X'.  Y.  115. 

10  Fuller  v.  Smith.  49  Vt.  2-54  ;  see  Priest  v.  Hamilton.  2  Tyler  49  ; 
Abdill  V.  Abdill, 26  Ind.  283  ;  Stinsou  r.  Pickering,  70  Me.  275  ;  compare 
Trieber  v.  .Shafer,  18  Iowa,  34  ;  and  see  Rhoades  r.  RhoaU  s,  43  111.  248  ; 
Rhett  V.  :5tastin,  43  Ala.  89  ;  Myers  v.  Myers,  6  W.  Va.  370. 

11  Fuller  V,  Snath.  49  Vt.  2*1 ;  Wrisleys  r.  Kenyon,  23  Vt.  7  :  Brown 
V.  Leverson,  12  HeLsk.  390  ;  and  see  Trieber  r.  Shafer,  13  low.i.  :"4. 

12  Price  v.  Winter,  15  Fla.  99  ;  Martin  v.  Porter,  4  Heisk,  411. 

:3  Stinson  v.  Pickering,  70  Me.  275  ;  Wells  v.  Smith,  44  Miss.  30.3  ; 
< frontier  v.  Puymirol,  19  Cal.  632;  compare  Buddecke  i-,  Buddecke, 
.1  La.  An.  -573. 

14  Swan  v.  Horton,  14  Grav,  179  ;  Stinson  v.  Pickering,  70  Afe.  275  ; 
^  e  Freedman  r.  Thompson,  41  Mis.s.  51 ;  Wells  v.  Smith,  44  Miss.  ::aJ ; 
.  ironfier  v.  Puymirol,  IJ  Cal.  6;J2. 

15  Swan  v.  Horton,  14  Grav,  179  ;  Stinson  v.  Pickering,  70  Me.  275  ; 
see  C.  &  L.  Ry.  Co.  v.  Bowler,  9  Bush,  499. 

IS  Smith  )•.  Tavlor,  .34  Tex.  603  ;  and  see  Gronfier  v.  Puymirol.  19 
T'al.  632  ;  Cowan  v.  Anderson,  7  Cold.  235  ;  Rhoades  v.  Rhoades,  4:S  lil. 
243  ;  Burrus  v.  Burrus,  .56  Miss.  95. 

17    Damouth  v.  Klock,  29  Mich,  2S7  ;  Elrod  v.  Lancaster,  2  Head.  574. 


g  59  WHO  MAT  SUE   XSD   BE   SUED.  168 

IS    AVaikor  r.  Hull,  35  Mich.  488  ;  and  see  Cook  v.  Adams,  27  Ala. 

11)    Sullivan  v.  Sullivan,  42  111.  318  ;  Rucker  v.  Moore,  1  Heisk.  7oO. 
'20    lirvant  v,  Livermore,  20  Minn.  ;i42  ;  McDonald  v.  McDonald,  24 
Ind.  <J;i.  ■ 

21  Bryant  v.  Livermore,  20  Minn.  342, 

22  CartwriKlit  v.  AViso,  14  111.  418  ;  Price  v.  Crone,  44  Miss.  577  ;  Peak 
r.  Pricer,  21  111.  Ibo  ;  CliatHn  v.  Kimball,  23  111.  38  ;  Long  v.  Mulford, 
17  Ohio  St.  503  ;  and  see  Leggett  v.  feellon,  3  Paige,  84  ;  but  see 
Ijiglisli  V.  Savage,  5  Oreg.  521. 

23  Rhoad;'3  v.  Klioades,  43  111.  249  ;  Fischer  r.  Fischer,  54  III.  234  ; 
T.oiiix  r.  Mulford,  17  Ohio  St.  503  ;  Hannum  v.  Wallace, 9  Humph.  129  ; 
and  SIC  Walker  r.  Fcrrin,  4  Vt.  527  :  McClure  v.  Farthing,  51  Mo.  110  ; 
J{  -vfrly  r.  Skinner,  33  Mo.  98  ;  compare  Pollock  v.  Buie,  43  :MiRS.  151. 

24  Long  V.  Mulford,  17  Ohio  St.  503  ;  INIilly  v.  Harrison,  7  Cold,  194, 

25  Fall  River  Foundry  Co.  v.  Doty,  42  Vt.  414. 

26  Jones  v.  Payne,  41  Ga.  30. 

27  Fort  V.  Battle,  13  Smedes  &  M.  13G. 

2  59.'  Infants,  suits  against  continued,— The  plea  of  in- 
fancy is  a  personal  privilege,  and  can  only  be  set  np  by  the  party 
liimself  and  not  by  third  i^ersons,!  As  a  rule  the  contracts  of 
an  infant  are  not  void  but  voidable  ;2  if  he  give  his  note  for 
the  purchase  of  land,  and  upon  attaining  majority  disaffirms 
the  contract,  the  sureties  thereon  will  also  be  released,^  Ser- 
vices rendered  by  an  attorney  to  an  infant  in  defending  him 
in  a  bastardy  proceeding  are  necessaries  for  which,  if  it  was 
reasonable  for  him  to  make  a  defense,  he  is  liable  on  an  implied 
promise.-*  "When  pleaded,  infancy  is  a  valid  defense  to  an  action 
for  the  breach  of  a  marriage  promise."  An  action  will  not  lie 
against  a  guardian  and  his  ward  jointly  for  a  debt  created  by 
act  of  the  ward  before  the  appointment  of  his  guardian.''  A 
guardian  who  calls  a  physician  to  the  slave  of  his  ward  is 
responsible  for  the  services  performed.'^  An  infant  is  liable  for 
a  tort  in  the  same  manner  as  an  adult  ;S  so  also  for  his  tres- 
passes and  frauds;^  but  not  for  trespasses  of  his  guardian. i" 
After  majority  he  is  liable  in  assumpsit  for  money  tortiously 
taken  by  him  during  infancy  ;ii  so  whenever  trover  is  the 
proper  form  of  action  it  will  lie  against  an  infant;  12  but  he  is 
not  liable  for  the  malicious  prosecution  of  a  suit  by  his  next 
friend  during  infancy  which  was  brought  without  his  knowl- 
edge or  consent,  even  thougli  he  expressly  assented  to  it  after 


169  rsTANTs.  ^  60 

knowledge.  ^3  When  property  is  bailed  to  an  infant  bis  infancy 
is  a  protection  to  him  for  any  non-feasance  as  long  as  he  kc-cps 
within  the  scope  of  the  bailment,  but  when  he  exceeds  it  the 
acts  amount  to  a  conversion,  and  he  is  liable  therefor.'*  In  an 
action  on  a  joint  contract,  when  the  infancy  of  one  defendant 
is  pleaded,  the  plaintiff  may  enter  nolle  prosequi  against  liim 
and  proceed  against  the  other.^^  Infants  cannot  be  made  par- 
ties for  the  sake  of  discovery  merely  where  they  have  no 
interest,  as  they  never  answer  on  their  own  oaths.^^ 

1  Alsworth  V.  Cordtz,  31  Miss.  .36 :  compare  Haynes  v.  ••^luck,  .12 
Miss.  rj3;  Blake  r.  Douglass,  27  Ind.  417. 

2  Baker  v.  Kennett,  54  >Io.  86 ;  compare  Robinson  v.  W-^eks,  .'56 
Me.  106;  and  see  Patterson  r.  Cave,  61  Mo.  4:^^  ;  Ferguson  r.  Babo,  »l 
Miss.  127 ;  Van  Syckle  v.  Rorback,  6  N.  J.  Eq.  2U. 

3  Baker  r.  Kennett,  M  Me.  86 ;  Patterson  v.  Cave,  61  Mo.  4.33. 

4  Barker  v.  Hibbard,  54  N.  H.  .540. 

5  Rush  r.  "U'ick,  31  0hi3  .St.  .521 ;  compare  Lee  v.  Hefley,  21  Ind.  99. 

6  Allen  v.  Hoppin,  9  R.  I.  260. 

7  Fersenden  v.  Jones,  7  Jones.  15;  and  see  Sherry  v.  Fanning,  SO 
I1L372, 

8  Conway  v.  Reed,  65  Mo.  350;  Oliver  v.  McClellen.  21  Ahi.  67S; 
conapare  Eaton  v.  Hill.  5)  X.  H.  •2Si  ;  and  see  Kirkpatiic-k  »•.  Ifall.ST 
Me.  .S13;  Chandler  v.  Draton,37  Tex.  4C'6:  McG>ie  i.  Welling,  31  Leg. 
Int.  37  ;  Burns  v.  Hill,  ly  Ga.  23  ;  Marshal  v.  Wing,  5i3  Me.  62. 

9  Ferguson  v.  Babo.  >t  Miss.  121  :  Sikes  v.  Johnson.  16  Mass.  3fl6 ; 
Barker  v.  Lovett,  6  Mass.  80  ;  Hutchings  v.  Engel.  17  Wis.  2:u  ;  .^cott 
V.  W^atson,  46  Me.  .363  ;  .School  Dist.  v.  Bragdon,  23  N.  H.  516  ;  Walker 
V.  Davis,  1  Gray.  50S  ;  and  see  Tucker  v.  McClure,  17  lowu,  5s.3;  com- 
pare West  V.  Moore,  14  Vt.  449. 

10  Cunningham  v.  I.  C.  Ry.  Co.  77  111.  181. 

11  Shaw  V.  Coffin,  5S  Me.  2-56  ;  r-d  see  Homer  r.  Thevinir,  3  P5ck. 
4'+4;  Carr  v.  Clough,  26  X.  H.  2a3 ;  compare  People  r.  KLndall,  25 
Wend.  3t)9. 

12  Homer  v.  Theving,  3  Pick.  494  ;  see  Schenks  v.  Strong.  4  X.  J.  L. 
89  ;  Fitts  V.  HaU,  9  X.  H.  443  ;  Woodman  r.  Hubbard,  2.5  X.  H.  73 

13  Burnham  r.  Seaverns.  101  Mass.  362  ;  compare  Sterliiig  r.  Adams, 
3  Day,  ASl. 

14  Towne  v.  T\'ilev,  23  Vt.  3.50  ;  and  see  Lewis  v.  Littlefield.  15  Me. 
235  :  Mathews  v.  Cowan,  53  111.  ;i42  ;  Homer  r.  Theving,  3  ri;-'<.  4  4 : 
compare  Penrose  v.  Curren,  6  Rawle,  452 ;  Wilt  r.  Welsh.  6  W  atts,  10. 

15  Woodward  v.  Xewell,  1  Pick.  501  ;  and  see  Hartness  »•.  Thomp- 
son. 5  Johns.  160  ;  Allen  v.  Butler,  9  Vt.  126  ;  Dacosui  r.  Davis.  2J  N.  J. 
L.  322. 

16  Leggetti'.  Sellon.  3Paige,84. 

I  60.    Infants,  suits  against,  judgment,  etc.— Judgment 

rendered  against  au  infant  for  whom  a  guardian  has  been 
appointed  should  be  entered  against  the  defendant  and  not 
Parties  — 15 


I  60  'V^HO  MAY  SUE  A>T5   BE  SUED.  170 

against  tho  guardian.^  In  chanceiy  proceedings  no  decree  by 
default  or  pro  confesso  can  be  rendered  against  an  infant.^ 
The  answer  of  a  guardian  ad  litem  admitting  the  truth  of  the 
cliarges  in  tho  bill  cannot  affect  his  rights  with  respect  to  him ; 
all  tlie  allegations  must  be  proved  with  the  same  strictness  as 
though  a  direct  and  positive  denial  had  been  interposed.^  A 
compromise,  however,  appearing  to  the  court  to  be  for  the 
benefit  of  an  infant  will  be  confirmed,  and  if  sanctioned  by  the 
court  cannot  afterward  be  set  aside  except  for  fraud  or  collu- 
sion.* "When  the  person  legally  competent  to  appear  on  behalf 
the  infant  has  notice  of  tho  pendency  ot  the  suit,  and  appears 
and  participates  in  the  defense,  the  decree  entered  will  be  bind- 
ing upon  the  infant.^  Generally  when  it  is  necessary  that  the 
rights  of  infant  defendants  be  represented  by  guardians  ad 
litem,  the  record  must  show  the  fact  of  the  appointment  or  the 
decree  will  be  reversed ;  ^  but  the  omission  to  make  the  appoint- 
ment is  not  a  jurisdictional  defect,  and  therefore  does  not  ren- 
der the  proceedings  and  judgment  absolutely  void;  it  is  only 
ground  for  reversal.^  Proceedings  in  insolvency  against  an 
infant  who  is  not  represented  by  a  guardian  ad  litem  are  void.^ 
In  ]:)roceediugs  in  the  probate  court  to  sell  lands  of  an  infant, 
he  must  be  represented  by  a  competent  person  or  the  decree 
will  not  be  conclusive  as  to  him."  Generally  a  judgment 
against  an  infant  who  has  been  properly  represented  in  the 
.suit  will  be  as  binding  and  conclusive  upon  liis  rights  as  though 
he  were  an  adult.^*^ 

1  Tucker  v.  McClure,  17  Iowa,  .583. 

2  Chufliu  ?•.  Kimball,  23  111.  ;iS  ;  Wells  r.  Smith, 44  Miss.  303  ;  Stim- 
~o(i  r.  Pickt'riiiK,  70  Me.  275;  Tucker  v.  Beau,  Go  Me.  ;»J;  Walsh  v. 
\\alsli,  ur.  Mass.  :tS2  ;  .Swan  v.  Horton,  14  Gray.  170;  Starbird  ?>. 
-Moore,  21  Vt.  .>«;  Chalfant  v.  Munroe,  3  Dana,  :iG  :  Hanna  v.  .Spoils, 
.')  Moil.  li.  a»  ;  Metcalf  v.  Alter,  31  La,  An.  380  ;  compare  Swain  v.  Ins. 
Co.  54  Pa.  8t.  459. 

3  Chaffin  v.  Kimball,  23  111.  as  ;  and  see  C.  &  Q.  Rv.  Co.  v.  Bowler, 
9  Bush,  4!>it ;  Wells  v.  Smith,  44  Miss.  303  ;  Tucker  v.  Bean,  65  Me.  S53 ; 
Carter  v.  Ingraham,  43  Ala.  84. 

4  Walsh  r.  Walsh,  116  Mass.  382. 

5  Fuller  v.  Smith,  49  Vt.  254  ;  and  see  Rankin  r.  Kemp,  21  Ohio 
St.  052  ;  (Jattendorph  v.  Goldschmidt,  83  N.  Y.  112. 

6  Myers  v.  Myers,  6  W.  Va.  370  ;  McDonald  i-.  McDonald,  3  W.  Va. 
679 ;  and  see  Piercy  v.  Piercy,  5  W.  Va.  202. 


171  rN-s.v>T:  PEESoxs  axd  idiots.  ^61 

7  Walkenhorst  v.  LevrLs,  24  Kan.  426  ;  and  see  Austin  v  Cbarlea. 
town  Fern.  Sem.  S  Met.  202 ;  Swan  v.  Horton,  14  Grav.  l?.t ;  Floovt-r  r 
Kuisej-  Plow  Co.  55  Iowa,  670;  Drake  r.  Hanshaw.  47  Iowa  232 ' 
Blike  V.  Douglass,  27  Ind.  417;  compare  Swain  v.  Ins  (v,  .>|  I*.-.  Sl. 
453  ;  De  Priest  v.  Harris,  6S  Ind.  570 ;  Marshal  v.  Wing,  50  mV.  G2. 

8  Farris  v.  Richardson,  G  Allen,  119. 

9  Gully  r.  Macy.  SI  X.  C.  361 ;  and  see  Ballev  r.  FItz  Gerald.  5« 
rjiss.  534  ;  Wells  f.  Smith.  44  Miss.  302;  McAli.ster  r.  Mov?, :«  Miss. 
232  ;  see  Dunham  r.  Hatcher,  31  Ala.  4S6. 

10    Philips  r.  Dusenberry,  s  Hun.  34S  :  see  McC'roskv  v.  Parks,  13 

S.  C.  93  :  but  see  Richards  i\  Richards,  10  Bush.  fi2». 

g  61.  Insane  persons,  idiots,  etc.,  suits  by. —  When  a  per- 
son is  by  ex  jyarte  proceeding  fonnd  to  be  a  lunatic,  he  may  in 
his  own  name  bring  an  action  to  traverse  the  inquisition. >  All 
actions  brought  to  enforce  the  rights  of  an  insane  person 
should  be  maintained  in  his  own  name,-  and  the  better  practice 
would  seem  to  be  to  add  in  the  writ,  by  his  guardian  A.  B.,  etc' 
Idiots  may  sue  at  law  by  next  friend  to  be  appointed  by  the 
court.*  In  equity  they  sue  by  their  committee  or  guardian  of 
their  estates  duly  appointed,^  and  the  joinder  of  the  name  of 
the  lunatic,  though  usual,  is  a  mere  formality  ;^  the  suit  migJit, 
however,  be  brought  in  the  name  of  either.^  In  Illinois,  Ver- 
mont, and  some  other  States,  before  the  apiwiutment  of  a 
guardian,  suit  might  be  maintained  in  the  name  of  the  insane 
psrson,  but  after  his  appointment  suits  must  be  maintained  in 
the  name  of  the  guardian ;  ^  after  his  removal  or  in  ca*ie  his 
interests  clash  with  those  of  the  insane  person,  suit  might  be 
maintained  in  the  name  of  the  latter  by  next  friend.*  If  the 
name  of  the  guardian  of  plaiutili'  be  omitted  in  the  writ,  it  is 
matter  of  abatement  which  must  be  taken  advantage  of  before 
plea'.ing  the  general  issue  or  it  is  waived.^"  The  committee  of 
a  lunatic  cannot  bring  action  in  his  own  name  to  recover  pos- 
session of  real  estate  alleged  to  have  belonged  to  the  lunatic 
prior  to  his  appointment.^^ 

1  Walker  r.  Russell.  10  S.  C.  88  :  Medlock  v.  Cogburn,  1  Rich.  Eq. 
477  ;  In  re  Wendell,  1  Johns.  Ch.  602. 

2  Brooks  t-.  Brooks,  3  Ired.  390  ;  Green  v.  Kornoimy.  4  Jon.*.  «<  ; 
Dearman  r.  Dearman.  5  Al:u  203  :  compare  Dorsl.einu-r  r.  Uuovl.ack. 
1-^  X.  J.  Eq.  4:in:  Rankin  v.  Warn.M-,  2  Lea.  :«2  ;  C.  A-  P.  K> .  (■•.  r. 
Munsrer.  7S  111.  :»1  :  Lincoln  r.  Thrall.  'M  Vt.  113;  and  s.o  Reed  r. 
Wilson,  13  Mo.  29  ;  Buchauan  v.  Rout,  2  Mon.  114. 


g  62  WHO  2i.\Y  srE  JlST)  be  sfed.  172 

3  I.ang  »•  \Vhid(len,  2  X.  H.  -j:36  ;  nnd  see  Dearman  v.  Dearman,  5 
Alu.  -W  ;  Reed  v.  Wilson,  13  Mo.  2d ;  Pelham  v.  Moore,  21  Tex.  756. 

4  Dorsheimer  ;•.  Koorback,  18  N.  J.  Eq.  -i:«i ;  Stephens  v.  Porter,  11 
Heisk.  »17  ;  Parsons  v.  Kinzer,  3  Lea,  340:  Shaw  r.  Burney.  1  Ired. 
Kq  l.ji) ;  Pelham  v.  Moore,  21  Tex.  756  ;  and  see  Cooke  v.  ThorTihill,  16 
Tex.  IMJ ;  Malin  v.  Malin,  2  Johns.  Ch.  240  ;  Fetton  r.  Smead,  2'J  Ark. 
380  ;  Bnrnet  r.  Bookstaver,  10  Hun, 485. 

5  Dorsheimer  v.  Roorback,  IS  N.  J  Eq.  439  ;  Norcom  v.  Rogers,  16 
N.  J.  E(i.  4X5  ;  compare  Parsons  v.  Keazie,  3  Lea,  34G  ;  Modawell  v. 
Holmes,  40  Ahu  400. 

G    Shaw  r.  Burney,  1  Ired.  Eq.  150. 

7  Latham  v.  Wiswall,  2  Ired.  Eq.  302. 

8  C.  it  P.  Rv.  Co.  Munger,  73  111.  301  ;  Holdin  v.  Leanlin.  30  Vt. 
17;) ;  Lincoln  r.  Thrall,  M  Vt.  113  ;  Field  v.  Lucas.  21  Ga.  451  ;  compare 
Hardenbrook  v.  Sherwood,  72  Ind.  403  ;  and  see  Cole  v.  Cole,  28  Gratt. 
369. 

9  Bird  V.  Bird,  21  Gratt.  718  ;  Norcom  v.  Rogers,  16  K".  J.  Eq.  485. 

10  Lang  V.  AVhidden,  2  X.  H.  436  ;  and  see  Jetton  v.  Smead,  29  Ark. 
380  ;  llobertson  v.  Lain,  I'J  Wend.  650. 

11  Burnet  v.  Barker,  10  Hun,  483;  and  see  King  v.  Cutts,  24  Wis. 
627  ;  Brooks  r.  Brooks,  3  Ired.  390  ;  but  see  Alexander  v.  Eichbaum, 
14  Pa,  St.  124  ;  Klohs  v.  Reifsnyder,  61  Pa.  St.  240. 

2  62.  Insane  persons,  idiots,  etc.,  suits  against.  —  In  a  suit 
for  interdiction,  tliu  defendant  who  is  charged  with  insanity 
must  be  notified  in  pcx-son,  he  cannot  be  cited  through  a  curator 
ad  lioc.^  An  insane  person  can  only  properly  appear  as  a 
defendant  in  a  suit  by  guardian  or  committee  ;2  and  if  the 
defendant  becomes  insane  after  suit  brought,  his  guardian 
should  bo  made  a  party.^  The  court  has  power  by  ex  parte 
order,  upon  j^roper  showing,  to  appoint  a  guardian  for  the  pur- 
poses of  such  action,  although  no  commission  de  lunatico 
inquirendo  has  issued.-*  So  also  upon  proper  showing  it  may 
vacate  the  order  ;^  and  if  the  defendant  has  no  guardian,  or  he 
is  an  unsuitable  person,  or  fails  to  defend  the  suit,  the  court 
may  ai:)point  some  other  person  as  guardian  ad  litem .^  The 
Common-law  rule  is  that  an  insane  person  defends  an  action  in 
the  same  manner  as  other  persons,  j)rocess  is  served  upon  him 
personally  ;  then  if  an  infant  he  appears  by  guardian  ;  if  of  full 
age,  Iw  attorney.^  An  action  may  be  maintained  against  an 
insane  person  for  necessaries  furnished  in  good  faith.*'  So  a 
contract  entered  into  without  knowledge  of  the  insanity  of  de- 
fendant, and  before  that  fact  is  found  by  inquisition,  there 
being  no  fraud  or  unfairness,  but  the  contract  being  upon  full 


173  I>'S.\>'E  PEESOXS  AM)  IDIOTS.  \   62 

consideration,  and  of  which  defendant  has  taken  the  benefit, 
may  be  enforced  against  him ;  ^  so  also  a  lunatic  may  Ik.-  hii(<1 
at  law  for  a  debt  which  he  contracted  when  of  sound  niiud  ;  "'^ 
but  no  action  can  be  maintained  against  the  lunatic  for  money 
received  by  his  guardian,  unless  it  was  applied  to  the  use  and 
benefitoftheinsaneperson.il  An  action  at  law  will  not  Ho 
agiinst  the  guardian  for  the  services  of  an  attorney  in  conduct- 
ing the  proceedings  in  lunacy;  but  the  estate  in  the  hands  of 
the  guardian  is  liable  therefor. '^  A  guardian  can  maintain  no 
action  against  his  ward  for  money  advanced  or  services  ren- 
dered as  guardian  until  he  has  settled  his  account.'^  A  lunatic 
ii  liable  for  his  torts  to  the  extent  of  the  actual  damage  inflicted 
iipon  the  pei'son  or  property  of  another .1*  A  decree  shoul  1  not 
be  rendered  in  an  action  against  a  lunatic  until  an  answer  has 
been  filed  and  defense  properly  and  regulai-ly  made;'^  still  in 
absence  of  fraud  a  judgment  without  answer  would  l>c  erro- 
neous only,  and  not  void  ;  ^^  but  a  court  of  equity  would  set  it 
aside  and  open  the  default  if  necessaiy  to  protect  the  interests 
of  the  defendant.!' 

1  C4ernon  v.  Du  Bois,  23  La.  An.  27  ;  Stafford  r.  StaffortI,  1  Martin 
Z!s'.  S.  643  ;  s?e  Sturges  r.  Longwortli,  1  Ohio  St.  55!). 

2  Youiit  V.  Turnpaugh,  X?  Ind.  4  ) ;  and  see  Sturges  v.  Lon^worth. 
1  Ohio  St.  550  ;  comparo  Ex  parts  Xorthmgton,  S7  Ala.  4C6  ;  ^3•,?e  also 
Van  Horn  r.  Hann,  39  2s.  J.  L.  213. 

3  Search  v.  Search,  26  X.  J.  Eq.  110. 

4  Hunter  v.  Hatfield,  12  Hun,  381 ;  compare  Ex  parte  Nothington, 
37  Ala.  4y,. 

5  Hunter  v.  Hatfield,  12  Hnn,  3S1. 

6  Sturges  v.  Longworth.  1  Ohio  St.  552;  Van  Horn  v.  Hann,  39 
X.  J.  L.  213. 

7  Van  Horn  f .  Hann,  39  X.  J.  L.  213  ;  and  see  Ex  part;-  L.  iirhton. 
14  :Mass.  207;  Tomliuson' r.  Devore  1  Uill.  347;  Allison  r.  Tavl.ir,  6 
Dana,  8-^ ;  Alclrich  v.  Williams,  12  Vt.  418  :  Walker  v.  Clay.  21  Ali.  s-U  : 
compare  Morris  v.  Clav,  8  Jones,  217  ;  Mason  v.  Mills.  (.;!  X.  C.  o<>j  ; 
Vv'ier  r.  Myers,  34  Pa.  St.  377  ;  Steel  r.  Young,  4  Watts,  4o'.>. 

8  Van  Horn  v.  Hann,  30  X.  J.  L.  203  ;  Young  v.  Stevens.  4>  X.  H. 
133  ;  Sawyer  v.  Lufkin,  55  Me.  30J  ;  Hines  v.  Potts,  5f>  Miss.  .VA. 

9  3rut.  Life  Ins.  Co.  v.  Hunt,  14  Hun,  171  ;  see  Adams  v.  Thomas, 
£3  X'.  C.  521  ;  Carr  v.  HoUiday,  1  Dev.  &  B.  »45  ;  compare  Eucking  r. 
Simmons,  28  Wis.  272. 

10  Stigers  r.  Brent,  50  Md.  215  ;  Hines  t- .  Potts,  5o  Miss.  352  ;  compare 
Wirebach  v.  First  Xat.  Bank,  97  Pa.  St.  549  ;  McCormick  v.  LUtler,  So 
111.  (A  ;  St.ate  Bank  r.  McCoy,  6;)  Pa.  St.  207. 

11  Hiues  v.  Potts,  5S  31tss.  351. 


g  62  WHO  MAY  SUE  AND  BE   SUED.  174 

12  VTioT  V.  Myers,  34  Pa.  St.  377. 

13  Smith  r.  Davis,  -15  X.  II.  570;  see  Davis  r.  Drew,  G  oST.  I-I.  4C0 ; 
Plielps  V,  Worcester,  11  X.  PI.  54  ;  Tally  v.  Tally,  2  D^ev.  .fe.  B.  Eq.  38(5. 

14  Vv'ard  v.  Couatser,  4  Baxt.  64  ;  INEorse  v.  Crawford,  17  Vt.  c02  : 
Cross  V.  Kent,  32  Md.  582. 

15  Sturges  v.  Longworth,  1  Ohio  St.  554  ;  Alliston  v.  Taj'lor,  6  Dana, 
88. 

IG  Lamphry  v.  Xudd,  29  N.  H.  303  ;  Alliston  v.  Taylor,  6  Dana,  88  ; 
and  see  Blake  v.  Respass,  77  N.  C.  11:5  ;  McAden  i\  Hooker,  74  N.  C.  28. 

17  AVatson  v.  Smith,  7  Oreg.  440  ;  and  see  Encking  v.  Simmons,  28 
"Wis.  2?2  ;  compare  3Ic2s'ees  v.  Thompson,  5  Bush,  G8G. 


175  mJSBA^•D  and  avife.  z  63 


CHAPTER  IX. 

HUSBA>D  AND  WTFE. 

?  ft5.    Husband  and  wife  generally,  suits  by. 
2  04.    Suits  upon  contracts. 

1  (i  J.    Suits  for  torts  to  the  wife. 

i  Of).    Suits  relati:ig  to  the  separate  property  of  the  wife. 

2  f)7.    Suits  between  husband  and  wife. 
5  6S.    Suits  against  husband  and  wife. 

2  63.    Same  continued,  separate  defense  of  wife,  suits  rclatiut,'  t'.  Ikt 

land,  etc. 
I  70.    Suits  for  torts  committed  by  husband  or  wife. 

^  63.    Eusband    ani    wifa,    generally,  suits  by.— As   a 

rule  tlie  Uv/  distinguishes  between  thoso  rights  of  action  that 
existed  before  coverture  and  those  which  arise  afterward ;  in 
the  former  case  the  husband  and  wife  must  be  joined  in  the 
action  ;  ^  in  the  latter  case,  as  a  rule,  the  husband  sues  alone  ;  ■-' 
whenever  the  right  of  action  would  survive  to  the  vdfo  she 
should  be  joined  in  the  action.^  Upon  an  express  promise 
made  to  the  husband  and  wife  during  covertui'C,  founded  upon 
a  consideration  moving  from  both,  tbev  may  both  join  ;*  but  if 
the  contract  is  implied  the  rule  would  seem  to  be  otherwise.* 
For  damages  arising  from  the  wrongful  seizure  by  attachment 
of  property  exempt  by  law  from  execution  sale,  cither  the  hus- 
band and  wife  may  join,  or  the  husband  may  sue  alone. ^ 
When  the  interest  of  the  wife  is  adverse  to  that  of  the  husband, 
she  should  not  be  joined  as  a  complainant  in  the  suit,  but 
should  be  made  a  defendant.'^  Coverture  a3  a  disability  to  sue 
is  not  matter  of  defense,  but  of  abatement  only  ;**  and  unless 
the  objection  is  made  at  the  proper  time  it  is  waived.**  The 
mere  suggesticn  of  the  fact  of  marriage  of  female  parties  is  all 
that  is  necessary  to  authorize  the  court  to  malie  their  husbands 
parties  ;  ^'^  the  general  rule  is  that  a  married  woman  cannot  sue 
or  be  sued. 11  "When,  therefore,  suit  is  brought  by  a  married 
woman,  she  must  show  by  proper  averment  that  she  is  within 


2  63  "WHO  MAY  SUE  AM)  BE  SUED.  176 

'•  I 

the  exception. ^-^  Wlien  the  husband  has  deserted  his  wife,  and 
has  never  beau  Avithin  the  State,  or  has  gone  beyond  its  border, 
she  may  sue  and  be  sued  in  her  own  name  as  a  feme  sole;  is  so 
when  the  husband  has  deserted  his  wife,  and  they  live  sepa- 
rately and  apart  from  each  other  without  her  fault,  and  he  fails 
to  make  provision  for  her  supiwrt,  she  may  acquire  property, 
sue  and  be  sued  as  ti  feme  sole.'^-^  A  married  woman  cannot 
brini;  a  bill  alone,  or  with  any  person  but  her  husband  as  next 
friend,  unless  ho  has  become  civilter  mortuus,  or  his  interests 
are  adverse,  and  in  that  case  he  should  be  made  a  defendant. i* 
It  is  not  necessary  to  obtain  the  authority-  -of  the  court  for  the 
wife  to  sue  separately  from  the  husband  x^reviously  to  the 
institution  of  the  suit ;  when  the  necessary  facts  are  shown 
which  give  her  the  ri^ht  to  sue,  permission  will  always  be  pre- 
sumed. ^^  "When  the  husband  joins  the  wife  in  a  suit,  and  the 
petition  alleges  that  the  wife  is  herein  authorized  and  assisted 
by  her  husband,  it  is  a  sufficient  authorization  of  the  wife  to 
sue.^'  If  pending  the  suit  of  husband  and  wife  upon  a  debt 
due  the  wife  when  sole,  she  dies,  at  common  law  the  suit  would 
abate;'"  but  by  statute  it  may  be  revived  by  her  adminis- 
trator.'» 

1  Story  r.  Baird,  14  N.  J.  L.  268  ;  Weagle  v.  Hensley,  5  Marsh.  J.  J. 
378  ;  Figlitniasler  v.  Beasley,  1  Marsb.  J.  .T.  606  ;  Kimbro  r.  First  Nat. 
Bank,  1  McAr.  03  ;  Gibson  v.  Gibson,  43  Wis.  24  ;  compare  Armstrong 
?'.  .Simo'.iton,  2  Mnrph.  ;;52  ;  Bell  v.  Allen,  o3  Ala.  125  ;  generallj-  Brat- 
ton  V.  Mitchell,  7  Watts,  115. 

2  8tory  v.  Baird,  14  X.  J.  L.  268  ;  Fightmaster  v.  Beaslev,  1  Marsh. 
J.  J.  600  ;  C.'.rswell  v.  Schley,  5c)  Ga.  22  ;  Little  v.  Keves,'24  Vt.  121  ; 
Bratton  v.  Mitchell,  7  Watts,  115  ;  Barrett  v,  Tewksbury,  18  Cal.  336. 

3  West  V.  Tllghman,  0  Ired.  107  ;  and  see  Burch  v.  Clark,  10  Ired. 
172'  Fuller  v.  Xangatuck  lly.  Co.  21  Conn.  574;  compare  Clapp  v. 
Stonin.'^ton,  10  Pick.  470  ;  see  also  Wheeling  ?•.  Trowbridge,  o  W.  Va,  3 
:«.•] ;  Parker  v.  Way.  46  X.  H.  40  ;  Haile  v.  Palmer,  5  3ro.  418  ;  Weagle 
V.  IIen!<ley,  5  Marsh.  J.  J.  .S78  ;  Gibson  v.  Gibson,  43  Wis.  25  ;  Hill  v. 
Royer,  17  Vt.  ICO  ;  Little  v.  Keyes,  24  Vt.  121.      •* 

4  Titus  V,  Ash,  24  X.  H.  328  ;  and  see  Smith  v.  Ransome.  21  Wend. 
204  ;  compare  Stanley  v,  Barhite,  2  Gaines,  221 ;  Hough  v.  Kugler,  36 
Md.  1«J3. 

5  Tltusr.  Ash,24X.  H.  323. 

0  Craddock  r.  Goodwin,  51  Tex.  581 ;  and  compare  Shepard  v. 
Cross, :«  Mich.  96  ;  State  v.  Dill,  60  Mo.  434. 

7  Alston  V.  Jones,  3  Barb.  Ch.  400  ;  Grant  v.  Van  Schoonhoven,  9 
Paige,  256, 


177  HUSBA>-D   AST)  WIFE.  ^  64 

8  Harden  V.  Attleboro,  7  Gray,  3.SS  :  and  see  TLssot  v.  Throck- 
morton, 0  Cal.  473  ;  compare  C.  &  X,  \V.  Ry.  v.  Button,  M  111.  410  ; 
Kimbro  i'.  First  Natl.  Bunk,  1  McxVr.  67  ;  Young  v.  Wurd,  21  111.  225. 

9  Tissot  r.  Throckmorton,  6  Cal,  473  ;  and  see  Tissot  i\  DarUn^,  7 
Cal.  2-io  ;  Walker  v.  Giiinan,  45  Me. ;»  J  Hoop  i-.  Flummer,  14  Ohio  St. 
44S ;  Packet  Co.  v.  Clough,  20  Wall.  528. 

10  Dickinson  v.  Trout,  8  Bush,  443  ;  and  see  Buck  v.  Flsb8r,2  Colo. 
710. 

11  Cowand  v.  Pulley,  9  La.  An.  13;  Kimbro  v.  First  Nat.  Bunk,  1 
McAr.  6.5  ;  Tucker  v.  Scott,  3  N.  J.  L.  95.5. 

12  Cowand  v.  Pulley,  9  La.  An.  13  ;  Gregorj'  v.  Paul,  15  MaAs.  .11  ; 
Mclntire  >'.  Cbappell,  2  Tex.  37S  ;  Botkin  v.  Earl,  6  Wis.  3D6 ;  see  Ken* 
nedy  v.  Williams,  11  Minn.  31s. 

13  Clark  v.  Valentine,  41  Ga.  14.b ;  Gregory  v.  Pierce,  4  Mc-t,  47S  i 
Gregory  r.  Paul.  15  Mass.  31  ;  and  see  Love  r.  Moynehan,  IG  III.  27i  ; 
Falhvickle  v.  Keith,  1  Heisk.  361 :  Cornwall  r.  Hoyt,  7  Conn.  427  ;  Ko- 
land  V.  Logan.  !■>  Ala.  307;  compare  Green  v.  Lyndes,  12  Wis.  405; 
Laughlin  r.  Eaton,  54  Me.  157. 

14  Love  V.  Movnehan,  16  111.  879;  and  see  Reilley  v.  Roilley,  4 
Brewst.  K)  ;  Benadum  v.  Pratt,  1  Ohio  St.  404 ;  but  see  Tucker  r. 
Scott,  3  N.  J.  L.  95.5  ;  see  also  Davis  v.  Woodward,  19  Minn.  175  ;  com- 
pare Stith  V.  Patterson,  3  Bush,  134. 

15  Bradlev  r.  Emerson,  7  Vt.  370  ;  and  see  Bieu  v.  Hea,th,  6  How. 
239;  Belonquet  r.  Lanata,  13  La.  An.  3;  Ward  v.  Ward,  2  iJev.  Eq. 
5.54:  Luttv.-ick  v.  Hamilton,  9  Heisk.  310;  Stephens  r.  Porter,  11 
Heisk.  :J42. 

16  Mclntire  v.  Chappell,  2  Tex.  378  ;  and  see  Jemison  v.  Barrow.  24 
La.  An.  171 ;  compare  Tutorship  of  Stokes,  22  La,  An,  2ai ;  a^a  also 
Blanc  V.  Dubroca,  6  La.  An.  360. 

17  Dunn  r.  Woodward,  11  La.  An.  265  ;  and  see  Tutorship  of  Stokes, 
22  La.  An.  204  ;  Howard  v.  Copley,  10  La.  An.  504. 

18  Pattee  v.  Harrington,  11  Pick.  222 ;  see  Ratlid"  v.  Davis,  .13  Miss. 
108. 

13    Paltee  r.  Harrington,  11  Pick.  222. 

§  64.  Suits  upon  contracts.  — Where  the  promise  was  to  the 
wife  wliLU  sole  she  must  join  in  an  action  i^.pon  it,*  and  the 
declaration  must  show  that  she  is  the  meritorious  cause  of 
action. 2  If  the  husband  seeks  by  bill  in  equity  to  impeach  a 
marriage  agreement  made  by  him  with  his  wife  before  marriage, 
she  must  be  made  a  party  defendant  and  not  be  joined  with 
him  as  co-plaintiff.^  When  a  female  plaintiff  marries  i->endiug 
the  suit,  her  husband  is  properly  joined  as  plaintiff  with  her.* 
Upon  an  express  promise  to  the  wife  during  coverture  at  com- 
mon law,  the  husband  could  either  sue  alone, ^  or  jointly  with 
the  wife.i^  A.  separated  from  her  husband  in  1870,  and  was 
divorced  from  him  in  lS7i;  from  1870  to  1875  she  boarded  X., 
and  subsequently  brought    suit  against  him    for    the  value 


§  65  "WHO   MAY  SUE   AND  BE   SUED.  178 

thereof,  held  the  action  conia  be  maintained  in  the  name  of  A., 
for  the  board  furnished  prior  to  the  divorce,  and  subsequent  to 
the  separation.^  Where  by  statute  the  earnings  of  the  wife 
accrue  to  her  for  her  sole  use,  an  action  to  recover  tliem  should 
be  brought  b}-  the  wife  alone,  without  joinder  of  the  husband. ^ 
A  wife  appointed  custodian  of  her  insane  husband  cannot 
recover  compensation  from  his  estate  in  that  capacity.^  On  a 
contract  to  pay  to  the  husband  or  his  wife  annually  a  certain 
sum  of  money  during  the  life  of  the  longest  liver  of  them,  if 
called  for,  upon  the  death  of  the  husband  the  cause  of  action 
survives  to  the  wife.^"  When  a  non-negotiable  note  given  to  a 
feme  sole,  who  afterward  married,  was  assigned  by  the  hus- 
band, held  the  assignee  properly  brought  suit  upon  it  in  the 
names  of  the  husband  and  Avife,  and  could  prosecute  it  to  judg- 
ment, although  pending  the  suit  the  husband  and  wife  were 
divorced.  ^^ 

1  Bond  r.  Baldwin,  Coxe,  216  ;  Brown  v.  Fitz,  13  N,  H.  286  ;  IMorse 
V.  Earl,  13  Wend.  272  ;  and  see  Tuttle  v.  Fowler,  22  Conn.  63. 

2  Pickering  v.  DeRochemont,  45  I:^,  H.  76  ;  Alexanders  v.  Good- 
win, &4  N.  H.  424  ;  see  Hawver  t\  Seibert,  4  W.  Va.  589  ;  compare  Mil- 
ton V.  Haden,  32  Ala.  40. 

3  Hale  v.  Gause,  3  Ired,  Eq.  116. 

4  Flynn  v.  riynu,21  La.  An.  168  ;  see  Lamkin  v.  Dudley,  34  Ala.  116. 

5  Bodgett  ?'.  Ebbing.  24  Miss.  245  ;  Sutton  v.  Warren,  10  Met.  454  ; 
Steward  ?•.  C'hiincc,  3  X.  J.  L.  830  ;  and  see  Ahrens  r.  State  Bank,  3 
S.  ('.  410  ;  Temploton  v.  Cram,  5  Me.  417  ;  compare  Cram  v.  Burnham, 
5  Me.  213  ;  Blackwood  v.  Brown,  32  Micli.  105. 

•  6  Bodgett  V.  Ebbing,  24  Miss.  245  ;  Lowry  r.  ]SraflF,4  Cold.  370  ;  com- 
pare Fallwi?kle  r.  Keith.  1  Heisk.  361 ;  and  see  Hawver  v.  Seibert,  4  \V. 
Va.  o3J  ;  Milton  v.  Haden,  32  Ala.  40  ;  Jordan  v.  Hubbard,  26  Ala.  436. 

7  Berry  v.  Teel,  12  R.  I.  267  ;  compare  Reynolds  v.  Robinson,  64 
N.  Y.  5J2  ;  Brooks  v.  Schwearin,  54  N.  Y.  347  ;  Gould  i\  Carlton,  55  Me. 
514  ;  Lainer  v.  Ross,  1  Dev.  &  B.  Eq.  40  ;  Reilley  v.  United  States,  7  Ct. 
of  CI.  500. 

8  Allen  v.  Eldridge,  1  Colo.  288  ;  Cooper  ^i.  Alger,  51  N.  H.  174  ;  and 
S20  Tanks  v.  Grovor,  57  Me.  583  ;  Meriwether  v.  Smith,  44  Ga.  543  ; 
Fowlo  V.  Tidd,  15  Gray,  94  ;  Burke  v.  Cole,  97  Mass.  114  ;  but  see  Gay  v. 
Rogers,  13  Vt.  342. 

9  Grant  v.  Green,  41  Iowa,  83. 

10  Prindlo  r.  Caruthors,  15  X.  Y.  430. 

11  Tuttle  ?'.  Fowler,  22  Conn.  63  ;  compare  Motlej'  i\  Sawyer,  34  Me. 
540. 

§  65.  Suits  for  tcrts  to  the  wife.  —  At  common  law,  as  a 
nile,  the  husband  and  wife  must  join  in  an  action  to  recover  dam- 


179  HUSBAXD   AND   WTFE.  \  65 

ages  for  injuries  either  to  the  person  of  the  wife  or  to  her  proi>- 
ertv ;  ^  but  this  was  not  the  case  if  she  had  been  deserted  by 
her  husband  and  they  were  living  separately  without  her  fault.'' 
"Where  the  injury  to  be  redressed  is  one  tliat  may  be  compen- 
sated in  damages,  or  the  right  of  property  be  tried  in  an  action 
of  replevin,  the  plaintifi^  although  a  married  woman,  u  still 
required  to  resort  to  the  forms  of  action  prescribed  by  the 
common  law  with  this  exception,  she  must  sue  by  next  friend.' 
In  detinue  the  husband  and  wife  must  join  for  a  chattel  of  the 
wife  detained  before  marriage  and  held  adversely.*  If  reduced 
to  possession  by  the  husband  after  mai-riage  he  should  sue 
alone. 5  For  goods  sold  by  husband  to  wife  but  not  delivered, 
she  cannot  maintain  replevin  against  attaching  creditors  of 
husband.^  For  a  tort  committed  upon  a  wife  at  common  law 
two  actions  will  lie,  one  by  the  husband  alone  for  the  less  of 
services,  expenses,  etc.,^  and  the  other  for  injuries  to  the  per- 
son of  the  wife.*^  In  the  latter  case  the  husband  and  wife  must 
be  joined.^  Now  in  many  of  the  States  by  statute  a  married 
woman  may  bring  an  action  in  her  own  name  for  injuries  to 
her  person  or  character  in  the  same  manner  as  though  she 
were  sole.^"  For  special  damages  accruing  to  the  husband,  as 
for  loss  of  society,  services,  expenses,  etc.,  he  may  sue  alone." 
At  common  law  if  death  resulted  instantaneously  from  the 
injury  he  could  not  recover.^^  gg  iu  action  by  husband  and 
Avife  for  injuries  to  the  latter,  if  she  died  pending  the  suit,  it 
abated  and  could  not  be  revived. ^^  Now  by  statute  it  may  be 
revived  and  prosecuted  by  her  administrator  alone.^'  So  also 
for  injuries  causing  her  death,  though  no  action  had  been  com- 
menced to  recover  therefor,  her  administrator  may  maintain 
suit.i^  When  plaintiff  in  an  action  for  slander  marries  pend- 
ing the  suit,  her  husband  should  be  joined  as  plaintiff  with 
her;!"  so  also  for  slander  to  a  married  woman  the  action 
should  be  in  the  name  of  the  husband  and  wife ;  i'  but  if  the 
husband  has  deserted  the  wife  and  keeps  without  the  jurisdic- 
tion of  the  State,  she  may  sue  as  a  feme  solc.^^  The  husband 
cannot  recover  in  an  action  brought  by  him  alone  for  such 
injury  unless  he  aver  and  prove  special  damage  to  himself. ^^ 


g  65  "VV-HO  MAY  SUE  AND  BE  SITED.  180 

For  a  slander  to  liuebaud  and  wife  a  joint  action  for  all  dam- 
ages cannot  be  maintained,  there  must  be  two  actions. 2"  A 
distinction  lias  been  made  between  words  actionable  per  se  and 
those  actionable  only  i:pon  proof  of  special  damage;  in  the 
former  case  the  husband  and  wife  must  join  in  the  action, 
while  in  the  latter  the  husband  must  sue  alone. 21  An  action 
cannot  bo  maintained  by  a  married  woman  against  a  person 
who  by  wrongful  acts  entices  away  her  husband,  whereby 
she  is  deprived  of  his  society  and  support; 22  but  an  action 
on  the  case  will  lie  in  favor  of  the  husband  and  against 
one  who  entices  away  his  wife,23  and  this  whether  the  wrong- 
doer be  the  father  of  the  wife  or  any  other  person. 21  In  the 
former  case,  however,  the  evidence  of  improper  motives  must 
be  stronger  than  in  an  action  against  a  stranger.20  Unless  a 
defendant  has  directly  or  indirectly  attempted  to  persuade  the 
wife  to  leave  her  husband,  or  having  left  him  not  to  return  to 
him,  there  can  be  no  recovery  ;2«  thus  exercising  ordinary 
hospitality  in  permitting  a  mother-in-law  to  reside  in  the 
family,  although  forbidden  by  the  husband,  will  not  sustain 
the  action. 2'  When  a  defendant  has  debauched  the  wife  of 
plaintiff  a  right  of  action  is  completers  The  action  is  not 
for  the  injury  to  the  wife,  like  battei'y,  slander,  etc.,  there- 
fore a  recovery  is  not  defeated  by  her  death  before  suit 
brought. 2«  It  does  not  proceed  upon  the  theory  of  loss  of 
services,  but  for  injury  by  the  dishonor  of  his  bed,  alienation  of 
his  wife's  affections,  destruction  of  his  domestic  comfort,  and 
the  suspicion  cast  upon  the  legitimacy  of  her  off-^pring.^"  The 
fact  that  plaintiff  is  living  in  an  open  state  of  adultery  may  be 
shown  in  mitigation  of  damages,  but  will  not  be  a  bar  to  the 
action. ^1  Collusion  between  the  husband  and  wife  as  to  the 
matter  of  bringing  the  action  will  be  no  bar  to  a  recovery,  but 
if  the  collusion  of  the  husband  and  wife  resulteel  in  the  offense 
of  the  defendant  it  is  a  bar  to  the  action. ^2  To  support  the 
action  there  must  have  been  a  valid  marriage,^^  and  the  parties 
must  have  been  living  together  as  husband  and  wife,  and  not 
separately  and  apart  by  their  joint  consent."^  In  aii  action 
to  recover  damages  for  a  malicious  prosecution  of  a  married 


181  HTSBAND   AXD   WIFE.  /J   $5 

■woman,  tlie  husband  should  be  joined  as  plaintiff  ;33  but  if  by 
statute  the  amount  of  the  recovery  would  be  the  geparate 
property  of  the  wife,  she  may  sue  alone. ^'^  For  a  conversion 
of  the  property  of  a  married  woman  occurring  before  marriage, 
an  action  to  recover  therefor  should  be  brought  in  the  joint 
names  of  husband  and  vrife.^^  If  the  conversion  occurred  after 
marriage  the  husband  should  sue  alone. ^^^  The  wife  cannot 
maintain  an  action  therefor  even  though  she  be  living  sepa- 
rate and  apart  from  the  husband.^**  When  the  money  of  a 
married  woman  (separate  property)  is  fraudulently  loaned  by 
the  husband,  and  a  note  therefor  taken  in  his  name,  she  may 
recover  the  amount  and  interest  in  an  action  brought  in  her 
name.*"  An  action  founded  upon  a  contract  made  in  rela- 
tion to  the  personal  security  of  the  wife,  which,  as  it  does  not 
vest  absolutely  in  the  husband,  must  be  maintained  in  the 
name  of  the  husband  and  wife.*^  After  divorce  a  wife  can- 
not maintain  an  action  against  her  former  husband  for  a  tort 
committed  by  him  upon  her  during  coverture. *- 

1  Burger  v.  Belsley,  45  111.  74  :  Ballard  v.  Russell,  .S3  Mp.  196  :  and 
see  Railroad  Co.  v.  Cox,  57  Ga.  252  ;  Keeney  v.  Good,  21  Pu.  .St.  :i>J. 

2  Burger  v.  Belsley,  45  111.  75  ;  see  Ballard  r.  Russell.  *?  Me.  infi  ; 
compiire  Cit\-  of  Peru  v.  French,  55  111.  32;J ;  (iustiu  v.  Carpenter,  51 
Vt.  5S7  ;  and  see  Anderson  v.  Anderson,  11  Bush,  .320;  Laughlin  r. 
Eaton,  54  :Me.  155  ;  31.  &  L.  Ry.  v.  Herrick,  13  Bu.sh,  125. 

3  Frazier  v.  ^Vhite,  4'J  Md.  8  ;  and  see  Strassburger  v.  Barber,  33 
Md.  103. 

4  Armstrong  v.  Simonton,  2  Murph.  352  ;  and  see  Brown  r.  Fitz, 
13  ^•.  H.  2S5. 

5  Shiers  r.  Alexander,  1  Hawks,  67  ;  generallv  Fairchild  r.  Chan- 
stelleux,  8  Watts,  412  ;  Brown  v.  Fltz,  13  X.  H.  2S5. 

6  Woodruff  r.  Clark,  42  X.  J.  L.  198  ;  compare  Jordan  r.  Cum- 
mings,  43  N.  H.  i;J6  ;  generally  Hobbs  v.  Hobbs,  70  Me.  3*}. 

7  Smith  r.  -St.  Joseph.  55  Mo.  45S  ;  but  see  Sandford  v.  Augusta.  ;C 
Me.  537  ;  compare  McDonald  v.  Chic.  <fe  X.  W.  Ry.  Co.  26  Iowa,  140  ; 
Whitcomb  v.  Barre,  37  Vt.  149. 

8  Rogers  v.  Smith,  17  Ind.  323  ;  Long  v.  Morrison.  14  Ind.  5,%  :  see 
Donaldson  !•.  Maginnes,  4  Yeates.  128  ;  Crump  r.  McKav,  s  Joiieis, ."«  ; 
M.  C.  Ry.  Co.  V.  Coleman,  23  Mich.  441  ;  Barnes  r.  Kurd.  11  Mass.  .5") : 
Fuller  V.  X'angatuck  Ry.  Co.  21  Conn.  .571  :  Hooper  v.  Haskell,  56 
Me.  251  ;  and  see  Wheeling  v.  Trowbridge,  5  W.  Va.  3.54. 

9  Donaldson  r.  Maginnes,  4  Yeates.  128  ;  Sheldon  v.  Uncle  Sam.  IS 
Cal.  5;«  ;  Starbird  v.  Frankfort,  a5  Me.  I/O  ;  Ballard  v.  Russell,  .«  Me. 
1%  ;  see  Anderson  r.  Anderson.  11  Bush.  330  ;  Chicago  v.  Speer,  (Jf.  III. 
155;  Hooper  r.  Haskell,  56  Me.  2.51:  Carlise  r.  Sheldon,  3S  Vt.  443; 
generally  see  Packet  Co.  v.  Clough,  20  Wall.  5.3S. 

Parties  — 16 


2  65  WHO   MAY   SUE   AND  BE   SUED.  182 

10  Barnett  v.  Leonard,  08  Ind.  425  ;  Berger  v.  Jacobs,  21  Mich.  220  ; 
Colvill  r.  Langdon,  22  Minn.  5fi6;  M.  C.  R.  Y.  Co.  v.  Coleman,  28  Mich. 
441  ;  Chicaffo  v.  speor,  Wi  III.  l">o  ;  Rumsej'  v.  Lake,  55  How.  Pr.  'MO; 
C.  it  N.  W.  Rv.  Co.  c.  Button,  (W  111.  411  ;  C.  B.  &  Q.  Ry.  Co.  v.  Dunn, 
52  III.  261  ;  Railroad  Co.  r.  Doolittle,  7  Nev.  4S6  ;  see  Klein  v.  Jewett, 
2(i  N.  .7.  Eq.  4.S0;  Tuttle  v.  Chic.  &  R.  I.  Ry.  Co.  42  Iowa,  510;  l)Ut  see 
(jibson  V.  Gibson,  43  Wis.  24  ;  Anderson  v.  Anderson,  11  Bush.  329. 

11  Berger  v.  Jacobs.  21  Mich.  221 ;  Mowry  v.  Chaney,  43  Iowa,  610  ; 
and  sje  Kavanaugh  v.  Zanesviile,  24  Wis.  618;  Klein  v.  Jewett,  26 
X.  J.  Kq.  4!>0;  King  r.  Thompson,  87  Pa.  St.  3fiS ;  see  also  Lewis  v. 
Babcock,  IH  Johns.  444  ;  Hoard  v.  Peck,  .56  Barb.  203  ;  compare  Wheel- 
ing V.  Trowbridge,  5  W.  Va.  ;^ ;  and  see  Hunt  v.  Winfield,  36  Wis. 
156  ;  Whitcomb  v.  Barre,  37  Vt.  149. 

12  Eden  v.  L.  A  P\  Ry.  Co.  14  Mon.  B.  168  ;  and  see  Mowry  v. 
Chaney,  43  Iowa,  610;  Green  v.  H.  R.  Rj'.  Co.  28  Barb.  9;  Carey  v. 
Berkshire  Ry.  Co.  1  Cush.  477. 

13  Saltmarsh  v.  Candia,  51  X.  H.  73  ;  Xorcross  v.  Stewart,  50  Me.  88. 

14  Saltmarsh  i'.  Candia,  51  X.  H.  76  ;  Xorcross  i'.  Stewart,  50  'Me.  88  ; 
West  V.  Jordan,  62  Me.  486  ;  but  see  Long  v.  Morrison,  14  Ind.  539. 

15  Whiton  v.  C  &  X.  W.  Rv.  Co.  21  Wis.  308  ;  itowry  v.  Chanev,  43 
Iowa,  611  ;  Dickens  v.  N.  Y.  Cent.  Ry.  Co.  28  Barb.  41 ;  but  see  Kear- 
ney V.  B.  &  W.  Ry.  Co.  9  Cush.  108  ;  Georgia  Ry.  Co.  v.  Wynn,  42  Ga. 
333. 

16  Gibson  v.  Gibson,  43  Wis.  24  ;  but  see  Leonard  v.  Pope,  27  Mich. 
146. 

17  Smith  V.  Silence,  4  Iowa,  324  ;  Gibson  v.  Gibson,  43  Wis.  24 ; 
Enders  v.  Beck,  18  Iowa,  87;  and  see  Gazynski  v.  Colburn.  11  Cush. 
10;  H'lrt  V.  Crow.  7  Blackf.  :i5l  ;  Smalley  v,  Anderson,  2  Mon.  57; 
Throgmorton  v.  Davis,  3  Blackf.  383. 

18  Smith  V.  Silence,  4  Iowa,  324  ;  Beach  v.  Beach,  2  Hill,  260. 

19  Johnson  v.  Dicken,  25  Mo.  533. 

20  Gazynski  v.  Colburn,  11  Cush.  10 ;  and  see  Hart  v.  Crow,  7  Blackf. 
351. 

21  Beach  v.  Ranney,  2  Hill,  316  ;  but  see  Ryan  v.  Madden,  12  Vt.  55  ; 
Shafter  v.  Ahalt,  48  Md.  173  ;  and  compare  authorities,  supra. 

22  Van  Arnam  v.  Ayers,  67  Barb.  545. 

23  Barbee  v.  Armstead.  10  Ired.  532  ;  Barnes  v.  Allen,  30  Barb.  668  ; 
Smith  V.  Lyke,  13  Hun,  204  ;  and  see  Huotr.  WHse,  27  Minn.  60;  see 
also  Van  Arnam  v.  Ayers,  67  Barb.  545. 

24  Bennett  v.  Smith,  21  Barb.  441 ;  Hutcheson  v.  Peck,  5  Johns.  208. 

25  Hutcheson  v.  Peck,  5  Johns.  208. 

26  Schimernan  v.  Palmer,  4  Barb.  227  ;  Hutcheson  v.  Peck,  5  Johns. 
208 ;  Turner  v.  Estes,  3  Mass.  318 ;  Smith  v.  Lyke,  13  Hun,  2W. 

27  Turner  v.  Estes,  3  Mass.  318 ;  and  see  Bennett  v.  Smith,  21  Barb. 

28  Yundt  v.  Hartrunft,  41  111.  11. 

29  Yundt  v.  Hartrunft,  41  111.  12;  compare  Fry  v.  Derstler,  2 
Yeates,  270. 

30  Yundt  V.  Hartrunft,  41  111.  17;  and  see  Xorton  r.  Warner,  9 
Conn.  174. 

31  Rca  V.  Tucker.  51  111.  Ill ;  and  see  Xorton  v.  Warner,  9  Conn.  174. 

32  Rea  v.  Tucker,  51  111.  112. 


1S3  HTSBAKD   A>-D  VTIFE.  \   66 

33  Forney  v.  Hallacher.  8  Serg.  &  K.  161. 

34  Frj-  V.  Derstler,  2  Yeates,  279. 

3.5  Lausjhlin  v.  Eaton,  54  Me.  l.iS ;  Hooper  v.  Haskell,  .%  Jfr'.  2.'Jl ; 
compare  Barton  v.  Kavanaugh,  12  La  An.  ,VA. 

36  Anderson  v.  Friend,  71  111.  477. 

37  Broome  v.  King,  10  Ala.  822  ;  see  Richardson  v.  Means,  22  Mo.  438. 

38  Gerrv  v.  Gerry,  11  Gray,  381 ;  Bhinchard  v.  Suwyor,  2  liarh.  .^V,; 
and  see  Rawlings  v.  Rounds,  27  Vt.  VJ ;  Turnley  v.  f .  11.  «fc  I.  Co.  b\ 
Tex.  451. 

39  Myers  v.  Griffis,  11  Rich.  562  ;  see,  however,  Ilenessey  v.  White, 
2  Allen,  41* ;  Davis  v.  Zimmerman,  40  Mich.  25. 

40  Wilkins  v.  Miller,  9  Ind.  101 ;  and  see  Walker  v.  Coleman,  si  ill. 
391 ;  see  also  Kueeland  v.  Fuller,  51  Me.  519;  Chappell  r.  Boyd,  61  Ua. 
666. 

41  Fuller  v.  Nangatuck  Ry.  Co.  21  Conn.  573;  Warner  v.  Unclf 
Sam,  9  Cal.  728;  see  Pollard  v.  Railroad  Co.  101  U.  S.  224;  compare 
Holmes  v.  Holmes,  9  La.  250. 

42  Abbott  V.  Abbott,  67  Me.  ;i05 ;  and  compare  Hobbs  v.  Hobbs,  70 
Me.  3S3. 

I  66.  Suits  relating  to  the  separate  property  of  tlic  wifa, 
may  be  maintained  by  the  wife  in  her  own  name  alone  ;  ^  thijj 
rule  is  to  be  confined  to  the  corpus  of  the  property,  and  for 
damages  to  the  property  itself,  as  distinguished  from  its  use ; 
the  rule  with  reference  to  the  rents,  issues,  and  profits  is  dif- 
ferent, in  these  the  husband  has  an  interest.^  So  in  several  of 
the  States  the  power  to  sue  alone  with  reference  to  her  sejmrate 
property  does  not  involve  the  necessity  of  so  doing ;  she  may  sue 
alone,  or  may  unite  her  husband  in  the  action  at  her  election.' 
For  goods  equitably  belonging  to  the  wife  under  an  anti-nnptial 
agreement,  the  husband  may  maintain  suit  as  her  trustee.*  In 
equity  the  wife  may  sue  alone, ^  but  the  husband  may  be  joined 
even  though  he  has  no  interest.*^  When  in  consequence  of  any 
unauthorized  act  of  the  husband,  violative  of  the  rights  of  the 
wife,  it  becomes  necessary  for  her  to  resort  to  a  suit,  she  need 
not  join  the  husband,  he  is  more  properly  made  a  party  defend- 
ant.' If  the  husband  lose  money  at  gaming  he  may  maintain 
a  statutory  action  (Ala.)  to  recover  it  back,  even  though  it 
belong  to  the  corpus  of  his  ^vife's  statutory  separate  estate." 
When  the  property  of  the  wife  is  levied  upon  by  the  creilitong 
of  the  husband,  an  action  for  damages  therefor  should  Ikj  pros- 
ecuted in  the  name  of  the  husband  and  wife  to  the  use  of  the 


g  66  WHO   MAY  SL'E  AND  BE   SUED.  184 

wiiiy  In  suits  relating  to  the  lands  of  the  wife,  the  husband 
is  not  bound  to  unite  as  a  party  ;  nor  is  he  bound  to  prosecute 
such  suit  pending  at  the  tirae  of  marriage. ^"  A  suit  by  hus- 
band and  wife  to  recover  land  which  she  deeded  when  an 
infant  is  a  disaflivmancc  of  her  act  of  salc.i^  If  the  interests  of 
the  husband  and  wife  arc  conliicting,  she  may  sue  alone,  mak- 
ing him  a  party  defendant. '"-^  In  ejectment  for  lanels  of  the  wife 
the  husband  should  be  joined  as  co-plaintiff, ^^  even  though  he 
is  under  guardianship. i*  "Where  title  to  lanels  is  in  the  wife 
she  may  prosecute  a  writ  of  entry  without  joining  her  hus- 
band.'^ If  the  lands  are  not  separate  property  of  the  wife,  the 
hu.-^band  may  maintain  ejectment  to  recover  possession  without 
joining  her  ;'*>  but  for  her  separate  property  the  wife  may 
maintain  ejectment  even  against  her  husband,^'  auel  the  fact 
that  he  lias  made  valuable  improvements  thereon  is  no 
defense.^'*  The  husband  and  wife  are  proj)erly  joined  as  par- 
tics  in  a  petition  for  partition  of  lanels,  in  which  she  is  inter- 
ested, if  their  interests  elo  not  conflict ;  ^^  so  also  in  a  bill  to 
remove  a  cloud  from  the  title  to  her  land. 2"  A  court  of  equity 
will  not  entertain  such  bill,  however,  while  the  defendant  is  in 
adverse  possession  of  the  land  under  claim  of  title. 21  In  an 
action  for  a  trespass  committed  to  the  lands  of  the  wife  before 
her  marriage,  the  husband  and  wife  should  be  joined ;  22  and  he 
is  properly  joineel  in  an  action  to  recover  for  damages  done  to 
her  real  property  after  coverture  ;23  so  both  may  join  with 
other  tenants  in  common  for  the  same  injury  to  their  joint  prop- 
erty.2i  Where  husband  anel  wife  are  in  the  possession  of  land 
which  is  her  sole  and  separate  property,  they  may  recover 
jointly  for  an  injury  to  the  possession  ;  2=  but  the  wife  may  sue 
alone,  although  she  has  a  husband  who  lives  with  her  upon  the 
land  and  cultivates  it,  provielcd  he  has  no  other  rights  than 
these. 2«  If,  however,  the  wife  allows  her  husband  without 
oljjection  to  control  the  land  and  use  the  income  as  his  owti  he 
should  sue  alone ;  2'  for  an  injury  to  the  reversion  she  must  sue 
alone. 28  In  a  writ  of  waste  for  injuries  to  the  lands  of  the 
estate  of  tlie  wife,  the  husband  and  wife  must  join. 25*  When  an 
action  for  injuries  to  the  land  of  the  wife  has  been  commenced 


185  HUSBA>-D  A^TD  WIFE.  ^  66 

in  the  joint  names  of  the  husband  and  wife,  if  the  husband  die 
jyendente  lite,  the  action  may  proceed  in  lier  name.*"  So  if  the 
wife  die  the  action  survives  to  the  husband.*'  In  an  action  for 
the  obstruction  of  a  way  appurtenant  to  the  lauds  of  the  wife, 
either  the  husband  and  wife  may  join,*- or  the  husband  may 
sue  alone.**  In  an  action  to  recover  rents,  issues,  and  profits  of 
the  lands  of  the  wife  accruing  since  marriage,  the  husband  may 
sue  alone  :  **  but  those  which  accrued  prior  to  marriage  bihjng 
to  the  corpus  of  her  separate  property,  and  must  be  recovered 
by  suit  in  her  name.*^  An  action  to  enforce  an  agreement  to 
convey  lands  made  to  the  wife  alone  should  be  maintained  in 
her  uame  without  joining  her  husband.*^  In  an  action  to 
recover  the  purchase  price  of  land,  the  wife  may  either  sue 
alone  or  jointly  with  her  husband.*^  So  where  land  is  con- 
veyed by  husband  and  wife  an  action  may  be  maintained 
in  their  joint  names  for  the  purchase  piice,*^  A  married 
woman  who  induces  a  buyer  to  purchase  her  lands  by 
agreeing  that  a  portion  of  the  purchase  price  may  be  applied  in 
extinguishment  of  a  debt  due  by  her  husband,  cannot,  after 
conveyance  of  the  premises,  repudiate  the  agreement  as  to  the 
husband's  debt,  and  compel  the  purchaser  to  pay  the  full  pur- 
chase price. *^  In  an  action  to  recover  the  distributive  share  of 
the  wife  in  the  estat3  of  a  decedent,  as  the  cause  of  action  would 
upon  the  death  of  the  husband  survive  to  the  Nvife,  the  suit  is 
properly  brought  in  their  joint  names. ^"  If,  however,  .as  in 
some  States,  such  share  vests  absolutely  in  the  husband  he  may 
maintain  an  action  therefore  in  his  own  uame  alone,  either 
before  or  after  her  death ;  "  so  if  the  share  vests  in  the  wife  as 
her  separate  estate,  she  may  maintain  the  action  in  her  own 
name  alone. ■*'^  In  an  action  to  recover  lands  claimed  as  a  home- 
stead th3  husband  and  wife  should  join.^*  So,  also,  to  restrain 
the  collection  of  an  illegal  tax  thereon.**  Also  in  foreclosure 
suits. -i^  After  the  death  of  the  husband  the  wife  has  such  an 
interest  in  the  homestead  (it  being  jurt  of  the  community 
property  of  herself  and  her  deceased  husband)  as  will  authorize 
her  to  sue  for  injuries  to  crops  belonging  to  her  and  grown 
thereon,  or  for  damages  to  the  land  caused  by  overflows  after 


g   66  WHO  MAY  SUE  AKD  BE   SUED.  186 

the  death  of  her  husband.**  A  widow  who  is  entitled  to  dower 
in  lands  which  has  not  been  assigned  to  her  may  maintain  an 
action  at  law  to  recover  the  same  against  a  grantee  of  her  hus- 
band who  denied  her  rights  therein.*'  "When  pending  a  suit  by 
a  widow  for  her  dower,  she  intermarries,  her  husband  may  be 
joined  as  co-plaintiflf ;  ^'^  in  such  suit  infant  heirs  should 
not  be  made  co-plaintiffs  with  her,  but  should  be  made  de- 
fendants.'"' 

1  llutton  V.  Williams,  35  Ala.  503  ;  Cambell  v.  Galbreath,  12  Bush, 
461  ;  and  see  Forbes  c.  T  uckerman,  115  Mass.  118  ;  Adams  i'.  Sater,  19 
Iiul.  -ll!);  .shocklev  v.  Shockley,  20  Ind.  lOt)  ;  see  also  Davis  v.  Her- 
rick,  37  Me.  31)8  ;  Collen  v.  Kelsey,  39  Me.  299  ;  Boa!  v.  Morgiur,  46 Mo. 
49  ;  but  see  C'lafliu  v.  Van  Wagoner,  32  Mo.  253  ;  Matson  v.  Matson,  4 
Met.  2(>1  ;  Jordan  v.  Cummings,  43  N.  H.  136  ;  Davis  v.  First  Nat.  Bank, 
5  Neb.  246  ;  compare  Spear  v.  Lumpkin,  .39  Ala.  602  ;  Carter  v.  Owens, 
41  Ala.  221  ;  Chappell  r.  Bovd,  61  Ga.  666  ;  see  also  Rader  v.  Neal  ;  13 
W.  Va.  as6  ;  Chaplin  v.  Holmes,  27  Ark.  416  ;  McComas  v.  Ins.  Co.  56 
Mo.  573;  Gribble  r.  Haynes,  22  La.  An.  141  ;  Kimbro  v.  First  Nat.  Bank, 

I  McAr.  65;  Kramer  v.  Conger,  16  Iowa,  436;  contra,  Lignoski  v. 
Brneo,  8  Fla.  270. 

2  Pickens  v.  Oliver,  2!)  Ala.  532  ;  and  see  Shear  v.  Lumpkin,  39  Ala. 
602;  Carter  v.  Owens,  41  A  la.  221 ;  but  compare  Davis  r.  First  Nut.  Bank, 
5  Neb.  246  ;  and  authorities,  supra  ;  see  also  Snyder  v.  Webb,  3  Cal.  87. 

3  Remheimer  v.  Carter,  31  Ohio  St.  581 ;  and  see  Berry  v.  Tibbatts, 

II  ]\[(>n.  15.  2.J6  ;  llackett  v.  Bonnell,  16  Wis.  476  ;  Foote  v.  Carpenter,  7 
Wis.  317  ;  BotUin  v.  Earl, 6  Wis.  396  ;  Corcoran  v.  Doll,  32  Cal.  J/O  ;  Cal- 
derwood  v.  Pyser,  31  C"al.  3.35  ;  Van  Maren  v.  Johnson,  15  Cal.  310  ; 
compare  Gee  v.  Lewis,  20  Ind.  149  ;  see  also  Kennedy  i'.  Williams,  11 
Minn.  318;  Nniinger  r.  Comm'rs,  10  Minn.  134;  Wolf  v.  Banning,  3 
Minn.  206;  but  see  Draper  t;.  Stouvenel,  35  N.  Y.  513  ;  Acklev  v.  Tar- 
box,  31  N.  Y.  .564;  Cannon  v.  Hemphill,  7  Tex.  199;  Clafiin  t'.  Van 
Wagoner,  :r2  Mo.  254  ;  generally  Bartlett  v.  Bovd,  34  Vt.  260  ;  Turnley 
V.  T.  B.  &  I.  Co.  54  Tex.  451  ;  Chestnut  v.  Chestnut,  72  111.  376. 

4  Smith  V.  Chapbell,  31  Conn.  502 ;  the  wife  should  also  be  joined, 
Mertens  v.  Loewei^sberg,  6D  Mo.  211  ;  compare  McMullen  v.  Van  Zant, 
73  111.  131 ;  and  see  Friend  v.  Oliver,  27  Ala.  534. 

5  Bader  v.  Neal,  13  W.  Va.  386  ;  Chaplin  v.  Holmes,  27  Ark.  416  ; 
Forbes  V.  Tuckerman,  115  Mass.  118;  Pennington  v.  Acker,  SO  Miss. 
164  ;  see  Bridges  r.  Phillips,  25  Ala.  137. 

6  Burns  v.  Lynde,  6  Allen.  306;  Forbes  v.  Tuckerman.  115  Mass. 
118;  see  .Michan  v.  Wyatt,  21  Ala.  826;  but  see  Rogers  v.  Torbut,  58 
Ala.  524  ;  s  e  also  Barnes  v.  Barnes,  64  Ala.  380;  compare  Bartlett  v. 
Boyd,  ."4  Vt.  2(30  ;  Dunnahoo  v.  Holland,  51  Ga.  147  ;  Vreeland  v.  Vree- 
land,  16  N.J.  Eq.  520;  Sherman  v.  Burnham,  6  Barb.  403. 

7  O'Brien  r.  Hilburn,  9  Tex.  2^8  ;  compare  also  Wing  v.  Goodman, 
75  111.  102  ;  McKay  v.  Treadwell,  8  Tex.  180. 

8  Harris  v.  Brooks,  56  Ala.  .390. 

9  Keeney  v.  Good,  21  Pa.  St.  355. 

10  Fauntleroy  v.  Crow,  5  Mon.  B.  140 ;  Elliott  v.  Newvold,  6  Jones, 
10;  Prescott  r.  Jones,  29  Ga.  60;  generally  C'alderwood  v.  Pvser,  31 
Cal.  :«5. 

11  Chadbourne  v.  Rackliflf,  30  Me.  360. 


187  HUSBAND   A>-D   WIFE.  \  66 

12  nar::i:i  r.  Gorard,  10  Bush,  261 ;  sse  Barrett  r.  Dough'v,  ir,  N  j 
Eq.  SdO  ;  comnar3  Day  v.  Bishop,  71  Me.  i:W.  "  '    ' 

13  Kelsey  r-.  rianmor,  IS  Conii.  310;  Brutton  v.  Mitchell,  7  Watts 
115;  compare  Elliott  ?•.  Xewvolcl,  fi  Jones,  10;  and  sop  Al!i"' r' 
Schmitz,  17  Vris.  170;  Westeott  v.  Miller,  42  Wis.  \ZZ\  Thompson  r* 
Green,  4  Ohio  .St.  '222. 

14  Hamilton  ?•.  Colvvell,  10  B.  I.  40. 

_15_  Cahooar.  Coe,  57  >'.  H.  630;  generally  Wentwortli  v.  Remlck, 
47  X.  II.  227. 

16  Cooper  v.  Ord,  60  Mo.  430  ;  see  Topping  v.  Sadler,  5  Jones,  a>3 ; 
and  compare  Park  v.  Pratt,  ;J3  A^t.  i>48. 

17  Wood  V.  Wood,  IS  Hun,  351  ;  compare  Whitnev  r.  Whitnev.  49 
Barb.  31) ;  Vv'right  v.  Wright,  54  N.  Y.  433 ;  and  see  Mini-r  v.  Minier.  4 
Lans.  4il. 

13    Wood  x\  Wood,  IS  Hun,  351 ;  Minier  r.  Minier,  4  Lan.s.  421. 

19  Kindell  r.  Titus,  0  Heisk,74:j;  compare  Stephens  r.  Porter.  11 
Hoisk.  342;  Molinary  ?'.  Fernandez,  2  La.  An.  567;  and  s -e  Foster  v. 
Dennison,  y  Ohio,  121 ;  Hutton  v.  V,*illiams,  35  Al.a.  503 ;  hut  s;-^  Howe 
r.  Blanden,  21  Vt.  313. 

20  Clark  v.  Ins.  Co.  52  Mo.  276. 

21  Daniel  v.  Stewart,  55  Ala.  231 ;  and  see  Clark  v.  Ii:s.  Co.  52  Mo. 
270. 

22  Hair  v.  Melvin,  2  Jones,  61. 

23  Thompson  v.  Xoble,  3  Pittsb.  Rep.  201  :  Deans  v.  Jones.  6  Jonos. 
230;  and  see  Little  v.  Downing.  37  X.  H.  364;  Thuchcr  r.  Phinui"V,7 
Allen,  1.50;  compare  Allen  v.  Kingsbury,  16  Pick.  2:is ;  and  s.-e  Tall- 
mad.^o  V.  Grannis,  20  Conn.  217;  Meader  v.  .Stone,  7  Met.  l-Vt;  Arm- 
strong V.  Colby,  47  Vt.  367 ;  but  see  Thompson  v.  Green,  4  Ohio  St.  222. 

24  Deans  r.  Jones,  6  Jones,  230;  compare  Williams  r.  Lauier, 
Busb.  32. 

25  I.  B.  &  W.  By.  Co.  v.  McLaughlin,  77  111.  277 ;  111.  "Cent.  Ry.  Co. 
)•.  Grable,  46  111.  445 ;  generally  Mass  v.  Plummer,  63  Me.  267  ;  biit  see 
Boos  V.  Comber,  24  Wis.  433. 

26  Boos  V.  Gomber,  24  Wis.  499 ;  and  see  XortO!i  v.  Craig.  68  Me.  277 : 
Bradford  v.  Hanscom,  63  Me.  103 ;  same  effect,  Chicago  ?•.  McGraw,  75 
111.  563. 

27  Lyon  v.  G.  B.  &  M.  By.  Co.  42  Wis.  .5-52 ;  compare  Brevard  r. 
Jones,  50  Ala.  241. 

23  T.  B.  &  W.  Bv.  Co.  v.  McLaughlin,  77  111.  277  ;  and  see  111.  Cent. 
Bv.  Co.  V.  Grablo,  46  111,  445  ;  Lvon  v.  G.  B.  &  M.  Rv.  Co.  42  Wis.  5.^2  ; 
Bradford  v.  Hanscom,  63  Me.  103;  see  Brevard  v.  Jones,  50  Ala.  2;©; 
Woodman  v.  ZSTeal,  43  Me.  267. 

29  Thacher  v.  Phinney,  7  Allen,  1.50 ;  Williams  v.  Lanier,  Bush.  .*?!. 

30  Little  r.  Downing.  37  X.  H.  :5e4 ;  see  Wood  v.  Gri;rin.4fi  X.  If. 
2S0:  Tallniad'^e  v.  Grannis,  20  Conn.  2u8  ;  generally  Wass  c.  Plummer, 
6S  "Sla.  267  ;  Armstrong  v.  Colby,  47  Vt.  364. 

31  Wood  V.  Grifan,  40  X.  H.  237 ;  see  Tallmadge  v.  Grannis,  20  Conn. 
238  ;  but  see  Buck  r.  Goodrich,  33  Conn.  41. 

32  Adams  v.  Barry,  10  Gray,  361;  Cushing  r.  Adams,  is  Pick.  110; 
Taylor  v.  Knapp,  25  Conn.  512. 

%\  Adams  v.  Barry,  10  Gray,  361;  and  see  Taylor  r.  Knapp.  25 
Conn.  512. 


g  67  WHO  MAY  SUE  A>T)  BE   SUED.  188 

r,4  Bocffs  V.  Price,  f>4  Ala.  519  ;  see  Bentley  v.  Simmons,  51  Ala.  165  ; 
HolliHeld  r.  Wilkinson,  54  Ala.  276  ;  generally  Clapp  !•.  Stoughton,  10 
Pic-k.  -16:$;  Dold  v.  (ieiger.  2  Gratt.  9<J;  Jacques  r  bhort,  20  Barb. 
26')  •  \vor  r  Aver,  16  Pick.  330;  but  see  Hayner  v.  Smith,  63  111.431; 
Urqvihart  r.  ITqiihart,  46  Cia.  416  ;  Ayer  v.  Aver,  16  Pick  330  ;  and  see 
Kender  v.  Dickeii,  27  Miss.  2.>4. 

35  Boggs  V.  Price,  64  Ala.  519. 

36  Stamhoffski  v.  Hooper,  75  111.  243. 

37  Kays  r.  Phelan,  10  Cal.  129. 

38  Miilherrin  v.  Hill,  5  Ileisk.  60  ;  generally  Scovil  v.  Kelsey.  46  111. 
»45 ;  Hutchins  v.  Oilman,  9  X.  11.  362. 

39  Meilov  v.  Butler,  26  Oliio  St.  536  ;  generally  Roach  v.  Randall,  45 
Me.  438  ;  ISTorthlngton  v.  Faber,  52  Ala.  45. 

40  Brvant  v.  Puckett,  3  Hawy.  254;  Griffith  v.  Coleman,  5  Marsh. 
J  J  cm  ;  Trible  v.  Frver,  5  Marsh.  J.  J.  180  ;  and  see  Pierce  v.  Dustin, 
24  X  II  425 ;  Howard  v.  Gilbert,  3J  Ala.  729  ;  but  see  Goddard  v.  John- 
son 'l4  Mck.  352;  Windson  v.  Bell,  61  Ga.  675;  compare  Dorsey  v. 
Simmons,  4  >Ga.  254;  Sneed  v.  Waring,  2  Mon.  B.  525;  Blackwell  v. 
Blackwell,33Ala.  59. 

41  Goddard  v.  Johnson,  14  Pick.  352;  Hapgood  v  Hioughton,  22 
Pick,  4S1 ;  generally  Hill  v.  Davis,  4  Mass.  139. 

42  Windsor  v.  Cell,  61  Ga.  675. 

43  Hodson  r.  Van  Fossen,  26  Mich.  69  ;  Poole  v.  Gerrard,  6  Cal.  72  ; 
and  compare  Eystor  v.  Hatheway,  50  111.  524 ;  see  also  Read  v.  Sang, 
21  Wis.  67J  ;  Guiod  v.  Guiod,  14  Cal.  506 ;  Murphy  v.  Coffey,  33  Tex.  509. 

44  Henry  v.  Gregory,  29  Mich.  69. 

45  Sargent  v.  Wilson,  5  Cal.  506  ;  Moss  v.  Warner,  10  Cal.  296  ;  and 
see  Dye  v.  Mann,  10  Mich.  295. 

46  Railroad  v.  Knapp,  51  Tex.  599. 

47  McKay  v.  Freeman,  G  Oreg.  453. 

48  Potier  v.  Barclay,  15  Ala.  451. 

49  Lc  Fort  v.  Delafield,  3  Edw.  Ch.  34. 

g  67.  Suits  between  husband  and  wife. — A  wife  at  com- 
mon law  could  as  a  rule  only  vindicate  her  rights  in  an  action 
when  joined  with  her  husband ;  a  statute,  therefore,  extending 
her  rights  will  not  be  construed  as  giving  her  a  right  of  action 
against  her  husband  unless  it  results  from  the  express  terms 
of  the  statute  or  by  necessary  implication ;  ^  but  in  equity 
whenever  the  interests  of  the  two  conflict,  the  wife  may  main- 
tain suit  against  her  husband  and  e  converso,  the  latter  against 
the  former,  as  if  they  were  sole  and  unmarried ;  '-^  it  is  only 
necessai-y  for  her  to  sue  by  next  friend ;  ^  her  failure  to  do  so, 
if  the  defect  is  apparent  upon  the  face  of  the  bill,  must  be  taken 
advantage  of  by  demurrer  or  it  is  waived.*  "When  a  statute  au- 
thorizes a  -wife  to  sue  alone   "when  the  action  concerns  her 


159  HTSBAXD    AND   "VTIFE.  g   87 

separate  property,"  aud  when  "the  action  is  between  herself 
and  her  husband,"  there  being  no  limitation  as  to  the  kind  of 
actions  that  may  be  maintained  between  "herself  and  her 
husband,"  she  may  recover  upon  a  promissory-  note  executed 
by  the  husband  to  the  wife  before  marriage,  and  which  is  her 
separate  property.^  As  to  actions  of  tort  (replevin),  it  has 
been  held  that  such  action  would  not  lie  by  one  against  the 
other  during  coverture  ;«  and  it  seems  a  wife  could  not  recover 
even  after  divorce  for  an  assault  committed  uiion  her  by  her 
husband  during  coverture. '  A  married  man  may  sue  his  wife  as 
executrix  of  the  estate  of  a  deceased  person,  for  a  debt  due  from 
the  decedent,  and  the  institution  of  the  suit  by  the  husband 
will  be  considered  as  an  authority  to  her  to  be  sued.**  In  an 
action  by  the  wife  for  a  separation  of  property  and  a  recovery 
of  her  paraphernal  rights,  the  fact  of  her  husband's  financial 
embarrassment  must  be  established  or  she  will  be  nonsuited." 
In  an  action  by  the  wife  against  the  husband  for  divorce  and 
alimony,  a  third  person  who  has  received  property  from  the 
husband  after  the  cause  of  action  accrued,  and  before  suit 
brought,  for  the  purpose  of  defeating  a  recovery  of  alimony, 
may  (statute)  be  made  a  defendant  and  the  rights  in  the  p-em- 
ises  adjudicated.^'^  After  divorce  a  wife  may  sue  htr  former 
husband  and  recover  upon  a  note  given  to  her  during  covert- 
ure for  money  borrowed  of  and  belonging  to  her.'^  So  the 
husband  may  recover  of  his  former  wife  the  value  of  improve- 
ments placed  by  him  at  her  request  upon  her  real  estate. '-' 

1  Smith  V.  Gorman,  41  :\re.  408  ;  generally  Hill  v.  Hill,  ."isi  Md.  ivl : 
Chestnut  v.  Chestnut,  72  111.  ;i.50  ;  Markham  r.  Miirkham.  4  Mich.  :W7  ; 
Crowther  v.  Crowther,  55  Me.  :i5t ;  Hobbs  r.  Hobhs,  70  Mo.  HSi  ;  com- 
pare Ak'xanfler  r.  Alexander,  12  La.  An.  533  ;  and  see  Claremont 
Bank  v.  Clark,  46  X.  H.  13.5. 

2  Porter  v.  Bank  of  Rutland,  19  Vt.  417  ;  Markham  r.  Markham. 
4  Mich.  307;  generally  Bennett  v.  Reid,  4  HeLsk.  444;  Campbell  v. 
Galbreath,  12  Bush.  461. 

•3  Porter  r.  Bank  of  Rutland,  19  Vt.  417  ;  generally  Markham  r. 
Markham,  4  Mich.  :>:)7  ;  but  see  Kashaw  ?■.  Kashaw.  -i  Cal.  Sll  ;  com- 
pare Wood  r.  Wood,  2  Paige,  457  ;  Sherman  v.  Burnham,  G  Barb.  404. 

4  Kenley  i\  Kenley,  2  How.  (Miss.)  752. 

5  Wilson  V.  Wilson,  36  Cal.  451  ;  generally  Clough  r.  Russell.  55 
X.  H.  2-<0  ;  May  v.  May,  9  Xoh.  13  ;  Campbell  r.  Galbreath.  12  Hush, 
4"^!  :  but  see  Hobbs  V.  Hobbs,  70  Me.  ;«2 ;  oom^are  Theurer  v. 
Schmidt,  10  La.  An.  29-3  ;  aud  see  Havuie  r.  Miller,  61  Ala.  t>i. 


g  68  ^VHO   MAY   SUE  AND  BE  SUED.  190 

6  Tlobbs  V.  Hobbs,  70  Me.  383. 

7  Abbott  V.  Abbott,  67  Me.  30.5  ;  and  see  Kallock  v.  Perrj-,  61  Me. 
27:i. 

S  Alexander  v.  Alexander,  12  La.  An.  5S9. 

9  Hendricks  v.  Wood,  Z'l  La.  An.  1052. 

10  Damon  v.  Damon.  23  Wis.  512 ;  Gibson  v.  Gibson,  40  Wis.  456. 

11  Webster  v.  Webster,  58  Me.  140. 

12  Blake  r.  Blake,  &l  Me.  179. 

§  63.  Suits  against  husband  and  wife. —The  husband  is 
liable  at  common  law  for  the  debts  of  the  wife  contracted  be- 
fore coverture,  at  any  time  before  her  death,  but  not  after- 
wards,' even  though  the  debt  was  for  the  price  of  property 
received  with  hcr;'-^  but  her  choses  in  action  not  reduced  to 
possession  during  her  life,  and  which  come  into  his  hands  as 
administrator  of  her  estate,  would  be  assets,  and  subject  to  the 
payment  of  her  anti-nuptial  debts.^  The  husband  should  not 
be  sued  aloue  for  such  debts,  as  the  cause  of  action  in  the  event 
of  his  death  survives  against  her,  therefore  both  should  be 
joined  in  the  action.*  In  such  an  action  the  defense  of  dis- 
charge by  the  decree  of  a  court  of  bankruptcy  of  the  female 
defendant  was  held  sufficient  and  available  for  both  husband 
and  wife.^  "When  by  the  provisions  of  the  Code  the  husband 
is  exempted  from  liability  for  the  debts  of  the  wife  contracted 
before  marriage,  she  may  be  sued  alone,^  and  her  separate 
property  will  be  liable  therefor  in  the  same  manner  as  though 
she  were  an  unmarried  woman ; '  so  in  equity  the  separate 
property  of  a  married  %Yoman  may  be  charged  for  a  debt  con- 
tracted by  her  while  a  minor  and  sole.'*  As  a  rule,  at  common 
law  an  action  could  not  be  maintained  against  husband  and 
wife  jointly  upon  a  contract  entered  into  during  coverture. *♦ 
"When  sued  upon  a  bond  executed  by  them  jointly,  upon  mo- 
tion made  before  plea,  plaintiff  was  allowed  to  dismiss  as  to  the 
wife  and  proceed  against  the  husband.^"  By  statute  the  powers 
of  married  women  have  been  greatly  enlarged  with  reference  to 
her  separate  property,  she  may  contract  and  sue  and  be  sued  in 
the  same  manner  as  though  sole;ii  but  unlimited  power  to 
engage  in  business  and  to  sue  or  be  sued  are  not  to  be  inferred 
or  upheld  except  upon  the  clear  'terms  of  the  statute. i-    An 


191  HUSBAND  A>T)  WIFE.  g  68 

action  upon  a  note  executed  by  husband  and  wife-  for  a  debt 
of  the  husband  cannot  be  enforced  against  them  jointly  (the 
statute  not  authorizing  her  to  make  contracts  of  this  charac- 
ter) j^-*  the  action,  however,  may  be  dismissed  as  to  her,  and 
proceed  against  the  husband.^'  In  Iowa  for  exi)enses  of  the 
family  the  husband  and  wife  are  jointly  and  severally  liable, 
and  a  separate  judgment  may  be  rendered  against  her  in  a  joint 
action  against  the  husband  and  wife,  even  though  the  former 
has  been  discharged  in  bankruptcy  ;  ^=  so  in  that  State  the  wife 
may  be  sued  for  the  price  of  articles  furnished  the  husband  for 
the  use  of  the  family,  even  though  the  goods  were  sold  upon 
the  credit  of  the  husband  and  his  note  taken  as  evidence  of  the 
debt.i^  In  an  action  for  plantation  supplies,^^  purchased  for 
and  used  upon  the  plantation  of  the  vdie,  her  estate  is  primarily 
liable ;  in  such  action  the  husband  should  be  joined  with  the 
wife  for  the  sake  of  conformity,  but  no  judgment  will  be  ren- 
dered against  him.'^  As  a  rule  the  husband  is  liable  for  neces- 
saries furnished  his  family, ^^  and  the  fact  that  his  wife  is  a 
dangerous  woman  and  has  offered  him  violence  does  not  relievo 
him  of  the  liability  where  she  offers  to  live  with  him  and 
demands  support.^"  So  for  medical  services  rendered  the  fam- 
ily the  husband  as  a  rule  is  liable,  ^^  particularly  when  the 
credit  was  given  to  him  in  the  first  instance,  and  there  was  no 
special  engagement  with  the  wife  to  bind  her  separate  estate  ;  ^ 
but  the  wife  may  by  express  promise  bind  her  estate  for  such 
services.-^  So  also  the  husband  is  primarily  liable  for  the 
funeral  expenses  of  the  wife.-*  A  married  woman  who  is  living 
with  her  husband  is  not  liable  for  her  debts  contracted  without 
the  concui'rence  of  her  trustee,  and  without  si^ecifically  charg- 
ing them  upon  her  separate  property ;  ^^  nor  will  her  express 
promise  after  the  death  of  her  husband  render  her  liable 
therefor. '■'''  The  wife  cannot  be  sued  alone  ia  an  action  at  law 
after  the  death  of  her  husband  for  the  price  of  necessaries  fur- 
nished the  family  during  coverture.-'  When  the  husband 
carries  on  business  in  the  name  of  the  wife  and  ostensibly  as 
her  agent,  but  in  fact  for  his  own  benefit,  one  who  sells  him 
goods  and  gives  him  credit  therefor  cannot  recover  the  price 


g  eS  "WHO  MAY  SUE  AND  BE  SUED.  192 

from  the  -n-ife  as  principal. '^'^  In  an  action  for  worli  per- 
formed upon  the  separate  real  estate  of  the  wife,  it  appearing 
that  tlie  labor  Avas  rendered  under  her  authority  or  by  her 
consent,  and  was  beneficial  to  her  estate,  the  plaintiff  properly 
recovered  judgment  against  both  husband  and  wife.'-^^  An 
action  may  be  maintained  upon  a  contract  made  by  a  wife 
binding  her  paraphernal  property  to  secure  the  release  of  her 
husband  from  jail.""  A  married  woman  who  carries  on  a  sep- 
arate business  in  her  own  name  cannot  x'lcad  the  non-joinder  of 
her  husband,  who  is  a  dormant  partner,  as  a  defense  to  an 
action  by  one  who  dealt  with  her  in  ignorance  of  the  partner- 
ship.^i  The  husband  is  not  liable  for  the  debts  of  the  wife 
incurred  in  a  separate  business  allowed  by  statute  to  be  carried 
on  by  her  with  lier  own  separate  property  and  the  profits  of 
which  acci'ue  to  her  separate  estate ;  '^'^  but  to  an  action  founded 
upon  a  contract  made  with  a  married  woman  living  separate 
and  apart  from  her  husband,  who  resided  within  the  State, 
although  she  was  accustomed  to  do  business  as  afeyne  sole,  the 
plea  of  coverture  is  a  perfect  defense.^^  Where  necessaries  are 
furnished  to  a  wife  who  has  been  abandoned  by  her  husband 
without  cause,  an  action  may  be  maintained  to  recover  their 
price  from  the  husband  ;^*  so  if  money  be  furnished  to  a  wife, 
deserted  by  her  husband,  for  the  purchase  of  necessaries,  and  it 
be  so  applied,  a  bill  in  equity  may  be  maintained  to  recover  the 
amount  from  the  husband.^^  After  the  wife  has  left  her  hus- 
band who  is  able  and  willing  to  provide  her  with  proper  main- 
tenance, and  during  an  action  brought  by  the  former  for 
divorce,  the  husband  is  not  liable  for  necessaries  to  one  who 
furnished  them  wit'.i  knowledge  of  the  facts,  in  absence  of 
express  promise  or  request;^**  nor  can  an  action  at  law  be 
maintained  against  a  husband  for  services  rendered  by  an  at- 
torney who  prosecutes  or  defends  a  suit  for  divorce  for  the 
wife,^'  even  though  she  be  successful  in  the  action  ;  ^'^  but  it 
seems  that  the  wife  is  liable  upon  such  coutract.^^ 

1  Jones  V.  Walkup,  o  Sneed,  138;  Allen  r.  McCullough,  2  Heisk. 
is:i;  pcniTally  Chiwson  r.  Hutclilnson,  11  S.  C.  325;  McMurtrv  v. 
M'ebstcT,  -is  111.  12:; ;  WaiU  ?•.  Kirkman,  13  Smedes  <fe  M.  605  ;  compare 
Agnew  V,  Williams.  1  Bush,  7  ;  Xash  v.  George,  6  Tex.  238  ;  Lennox  v. 


193  HrSBA>-D   AND  WIPE.  '',   68 

Eldred,  65  Barb.  412;  Heller  v.  Jones,  6  Hun,  631 ;  an<l  soo  Xwz  v 
Heutter,  1  Watts,  233  ;  Robinson  v.  Heynolds,  1  Aiken,  174. 

2  Jones  v.  Walkup,  5  Sneed,  138. 

3  Jones  v.  Walkup,  5  Sneed.  139;  and  see  Waul  v.  Kirkmaii,  1.1 
Smedes  &  M.  605 ;  generally  Leland  r.  Whittaker,  23  Mich.  32-1. 

4  Gage  v.  Reed,  15  Johns.  403 ;  compare  Xash  >•.  Georg.',  6  Tex.  jns  ; 
and  see  Carl  v.  Wonder,  5  Watts,  97  ;  Lennox  v.  Eldred,  05  Barb.  412  ; 
^sicholson  v.  Wilborn,  13  Ga.  470:  and  sco  Bacoa  v.  Bevan,  44  ^liss. 
295 ;  Xutz  V.  Reutt?r,  1  Watts,  2.33. 

5  Chadwick  ;•.  Starrett,  27  Me.  141. 

6  Madden  v.  Gilmer,  40  Ala.  633 ;  Zacliarv  v.  Cadenhtad,  40  Ala. 
237  ;  and  see  Heller  v.  Jones, 6  Hun,  631 ;  compare  Howarth  »•.  Warni- 
ser,  o3  111.  43 ;  Xash  v.  George,  6  Tex.  238 ;  Lennox  {-.  Eldre*.  (>5  Barb. 
412. 

7  Madden  r.  Gilmer,  40  Ala.  638  ;  Heller  v.  Jones.  6  Hun,  6:!1 ;  see 
Xash  V.  George,  6  Tex.  2.3S  ;  Lennox  v.  Eldred,  Go  Barb,  412. 

8  Dickson  v.  Miller,  11  Smedes  &  M.  602. 

9  Davis  V.  Millett,  31  Me.  430  ;  and  see  Fitllwickle  v.  Keith,  1 
Heisk.  360  :  generally  Wooster  v.  Xorthrup,  5  Wis.  2-56  ;  Howe  v. 
Wildes,  34  Me.  571 ;  Grasser  v.  Eckart,  1  Binn.  537  ;  3Iaver  v.  Sovster, 
30  Md.  402. 

10  Pell  V.  Pell.  20  Johns.  126;  generally  Wooster  v.  Xorthrup.  5 
Wis.  257  ;  Harrington  v.  Thompson,  9  Gray,  65. 

11  Viser  v.  Scruggs,  49  ^^liss.  709;  compare  Mallett  r.  Parham.  52 
Miss.  922;  Oatman  v.  Goodrich,  15  Wis.  589;  Owsley  c.  Case,  1«  Wis. 

607  ;  Todd  r.  Lee.  15  Wis.  363;  Yates  v.  Lurvey,  65  Me.  222;  but  see 
Latshaw  ;•.  McXees,  50  Mo.  :i33  ;  Fink  v.  Hanegan,  51  Mo.  2S1 ;  gener- 
allv  Xorthwestern  Mut.  L.  Ins.  Co.  r.  Allis,  23  Minn.  340;  Halley  »•. 
Ball,  66  HI.  2.52  ;  McKune  r.  McGarvey,  6  Cal.  498. 

12  Wooster  c.  Xorthrup.  5  Wis.  245 ;  generallv  Harrinijton  r. 
Thompson,  9  Grav,  65;  Viser  r.  Scruggs,  49  Miss.  709;  Sturnif^-l.sz  r. 
Fricklev,  45  Md.  .571  ;  Dubose  v.  Hall,  7  La.  An.  563;  Batchelder  ?•. 
Sargent,  47  X.  H.  264  ;  Carter  v.  Wann,  45  Ala.  347. 

13  Harrington  ?•.  Thompson,  9  Gray.  65;  generally  D»  Vries  r. 
Conklin,22  Mich.  253  ;  Emerv  r.  Lord,  26  3rich.  4:f2 ;  but  see  Xorth- 
western  Mut.  L.  Ins.  Co.  v.  Allis.  23  Minn.  338  ;  Agnow  t.  Merritt.  10 
Minn.  311;  compare  Chaffe  r.  Oliver,  33  La.  An.  HXu  ;  Carpenter  v. 
3Iitchell,  50  111.  471 ;  Carlev  ?•.  Fox.  38  Mich.  .5S!i ;  Kitchell  v.  Mudgt-tt, 
37  Mich.  &4  .  Vankirk  r.  Skillman,  U  X.  J.  L.  110  ;  Covington  r.  Yurlt- 
son,28Tex.  .370. 

14  Harrington  t" .  Thompson,  9  Gray,  6-5. 

15  Jones  V.  Glass,  48  Iowa,  34.5  ;  generallv  Smedley  r.  Felt,  43  Iowa, 

608  ;  but  see  Bell  v.  The  People.  6  Hun,  302  ;  compare  Carter  r.  Wann. 
45  Ala.  ;}47  ;  Co.  of  Delaware  r.  McDonald,  46  Iowa,  170. 

16  Smedley  v.  Felt,  41  Iowa,  .589  ;  Smedley  v.  Felt,  43  Iowa,  r.««. 

17  Herman  r.  Perkins,  52  Miss.  81-3. 

18  Cook  V.  Ligon.  ,54  :Miss.  .372  ;  and  see  Mallett  ?•.  Parham.  -52  >ris.s. 
9-22;  generally  Dugat  v.  Markham,  2  La.  37;  Batchelder  r.  Sargent, 
47  X.  H.  2&4. 

19  Spann  v.  Mercer,  8  Xeb.  3.57  ;  Webber  r.  Spannhake.  2  Redf.  2fiO  ; 
generally  Clark  v.  Cox,  32  Mich.  205;  Dunbar  r.  Meyer,  43  Miss.  «i>i4  ; 
Connerat  v.  Goldsmith,  6  Ga.  17  ;  Creeney  v.  Xooney,  5  Alb.  L.  J.  199. 

20  Bell  V.  The  People,  6  Hun,  302, 

Pakties  — 17 


g  69  WHO  MAY  SUE  AND  BE  SUED.  194 

21  Spaiin  V.  Mercer,  8  Neb.  358 ;  Webber  v.  Spannhake,  2  Redf.  259 ; 
but  see  Co.  of  Delaware  v.  McDonald,  46  Iowa,  170;  generally  Potter 
t',  Virgil,  67  Barb.  o7a. 

22  Spann  r.  Mercer,  8  Neb.  358  ;  Webber  v.  Spannhake,  2  Redf.  259. 

23  Yates  r.  Lurvej'.  65  Me.  222  ;  and  see  Dunbar  v.  Meyer,  43  Miss. 
6H4  ;  generally  Connerat  v.  Goldsmith,  6  Ga.  17 ;  Todd  v.  Lee,  15  Wis. 
369. 

24  Sears  v.  Giddey,  41  Mich.  591. 

25  Feltoii  ('.  Rcid,  7  Jones,  271 ;  see  Batchelder  v.  Sarge;it,  47  N.  H. 
264 ;  compare  King  v.  Mittalberger,  50  Mo.  184  ;  Colby  i-.  Samson,  39 
Me.  119. 

26  Felton  r.  Reid,  7  Jones.  271 ;  compare  King  r.  Mittalberger,  50 
Mo.  184. 

27  Carter  v.  Wann,  45  Ala.  343. 

28  Foster  v.  Pcrsch,  6  Daly,  165;  Natl.  Bank  of  Metropolis  v. 
Sprague,  20  N.  J.  Kq.  23. 

29  Eckert  ?•.  Renter,  33  N.  J.  L.  267;  generally  Blevins  v.  Buck,  26 
Ala.  297  ;  compare  Emery  v.  Lord,  26  Mich.  434. 

30  Jaffa  V.  Myers,  33  La.  An.  408. 

31  Scott  V.  Conway,  58  N,  Y.  619 ;  compare  McKune  r.  McGarvey, 
6  Cal.  498. 

32  Javcox  V.  Wing,  66  111.  184 ;  and  see  McKune  v.  McGarvey,  6 
Cal.  498  ;  generally  Colby  v.  Samson.  39  Me.  120  ;  Oxnard  v.  Swanton, 
39  Me.  127. 

33  Fuller  v.  Bartlett,  41  Me.  245;  and  see  Howe  v.  Wildes.  34  Me. 
570;  Robinson  v.  Reynolds,  1  Aiken,  177;  generally  McDermott  v. 
French,  15  N.  J.  Eq.  79 ;  compare  Colby  v.  Samson,  39  Me.  120 ;  Ox- 
nard V.  Swanton,  3j  Me.  127. 

34  Biddle  v.  Frazier,  3  Houst.  262  ;  see  Walker  v.  Simpson,  7  Watts 
&  S.  83 ;  compare  Catlin  v.  Martin,  69  N.  Y.  395 ;  Dow  v.  Eyster,  75  111. 
2.56 ;  Wing  v.  Hurlburt,  15  Vt.  613 ;  Pearson  v.  Darrington,  32  Ala.  242 ; 
Morrison  v.  Holt,  42  N.  H.  479. 

35  Kenvon  i\  Farris,  47  Conn.  514 ;  compare  Walker  v.  Simpson,  7 
Watts  &  S.  83. 

36  Catlin  r.  Martin,  69  N.  Y.  395. 

37  Dow  p.  Eyster,  79  111.256;  generally  Shelton  v.  Pendleton,  18 
Cojin.  421 ;  Williams  v.  Munroe,  18  Mon.  B.  516  ;  Wing  v.  Hurlburt,  15 
Vt.  615 ;  Pearson  r.  Darrington,  32  Ala.  242  ;  Morrison  v.  Holt,  42  N.  H. 
479  ;  contra,  Porter  v.  Briggs,  33  Iowa,  167. 

38  Rayt'.  Adden,50N.  H.  83. 

39  Whipple  V.  Giles,  55  N.  H.  140. 

I  69.  Same  continued— Separate  defense  of  wife  — Suits 
relating  to  her  land,  etc.  — Under  the  provisions  of  the  Code 
a  married  woman  cannot  be  sued,  without  an  authorization  from 
her  husband  or  the  court,  unless  she  be  engaged  in  separate 
trade  as  a  public  merchant ;  ^  the  object  of  the  law  is  complied 
with,  however,  if  the  husband  joins  the  wife  in  an  answer  to 
the  suit,,  even  though  they  have  not  been  designated  as  husband 


195  m:sBA>-D  and  wite.  ^  69 

and  wife  in  the  petition.^  A  non-resident  married  woman  may 
prosecute  an  appeal  from  the  judgment  rendered  against  ber, 
the  court  may  authorize  her  to  do  so,  and  the  authority  to  pros- 
ecute the  appeal  includes  the  power  to  give  a  proper  Ixtnd.* 
When  husband  and  wife  are  sued  upon  their  joint  liability,  it 
is  the  duty  of  the  husband  alone  to  make  defense  for  lK)tli.*  So, 
as  a  rule  in  equity,  when  sued  jointly  with  her  husband  the  wife 
answers  with  her  husband  under  special  circunistances.  she  may 
answer  separately,^  and  she  is  presumed  so  far  under  the  domin- 
ion of  her  husband  that  she  is  not  bound  by  an  answer  made 
jointly  with  him.*'  When  a  bill  seeks  to  subject  the  separate 
property  of  the  wife  to  the  payment  of  the  demand  therein  set 
forth,  the  husband  is  properly  joined  with  her  as  a  defendant.' 
When  by  statute  a  woman  is  permitted  to  sue  and  be  sued  in  the 
same  manner  as  though  sole,  as  she  is  under  no  disability  as  to 
the  time  or  manner  of  putting  in  her  defense,  she  can  claim  no 
indulgence  on  the  ground  of  coverture  ;  if  she  does  not  make 
her  defense  at  the  proper  time  the  law  will  presume  that  she  lias 
none.^  A  petition  in  an  action  on  a  joint  note  executed  by 
husband  and  wife  should  aver  that  the  debt  was  contracted  for 
the  benefit  of  the  separate  property  of  the  wife  or  such  other 
facts  as  would  authorize  a  judgment  against  her,  otherwise  her 
default  will  be  set  aside ;  ^  but  it  seems  she  may  appear  and 
waive  errors,  and  thereby  cure  the  defects  in  the  pleading.'"  In 
statutory  proceedings  for  the  sale  of  the  real  estate  of  the  wife, 
she  should  be  made  a  defendant,  and  not  a  co-plaintiff,  unless 
the  strict  terms  of  the  statute  are  carried  out,  her  title  will  not 
pass. 11  Specific  performance  will  not  be  decreed  against  a 
married  woman  by  a  court  of  equity  to  compel  her  to  convej 
her  real  property  upon  a  covenant  executed  by  hei-self  and 
husband  during  coverture ;  ^'^  but  a  contract  executed  by  Imsband 
and  wife  upon  proper  consideration,  binding  themselves  to 
execute  a  mortgage  upon  their  separate  estates,  will  l>e  enforced, 
and  treated  as  an  equitable  lien  upon  such  estate."  The  fact 
that  the  wife  executes  a  mortgage  with  her  husband  is  suffi- 
cient reason  for  making  her  a  party  defendant  with  liim  in  an 
action  to  foreclose  the  same,  and  the  complaint  need  not  show 


g  69  WHO  MAY  SUE  AND  BE  SUED.  196 

the  character  of  her  interest  in  the  premises  ;i*  she  may  also  be 
made  a  party  defendant  in  such  proceedings  against  her  hus- 
band if  she  claim  a  homestead  interest  in  the  premises ;  ^^  or  if 
she  claim  them  as  her  separate  property  by  virtue  of  a  deed 
from  her  husband, ^^  although  she  was  not  a  party  to  the  mort- 
gage ;  but  if  she  is  not  served  with  summons,  and  the  decree 
docs  not  foreclose  or  affect  her  rights  in  the  premises,  she  can- 
not prosecute  a  writ  of  error  to  reverse  the  decree. ^^  Where  a 
deed  of  trust  is  sought  to  be  reformed  by  suit,  if  the  petition 
shows  that  the  husband  owns  the  premises,  the  fact  that  the 
wife  has  an  inchoate  right  of  dower  therein  is  not  sufficient  to 
demand  her  joinder  as  a  party.^**  When  it  is  sought  to  set 
aside  conveyances  of  property  from  the  husband  to  the  wife,  or 
in  which  she  joined  with  him  in  conveying  to  third  persons, 
and  which  conveyances  are  alleged  to  be  fraudulent  as  to  cred- 
itors, the  wife  is  properly  made  a  party. ^^  In  ejectment  for 
lands  claimed  by  the  wife  under  a  deed  which  vests  the  title  in 
her,  but  creates  no  separate  estato,  the  marital  interest  of  the 
husband  gives  him  the  right  of  possession,  and  he  alone  should 
be  sucd.'-^"  If  the  wife  has  been  joined  and  judgment  goes 
against  both,  and  pending  appeal  the  husband  dies,  the  action 
abates,  the  possession  thus  acquired  by  the  wife  will  not  support 
a  judgment  against  her  in  the  original  action  ;  21  but  if  the  con- 
veyance creates  in  the  ^ife  a  statutory  separate  estate,  she  must 
be  sued  alone, '^^  In  an  action  of 'forcible  entry  and  detainer 
against  a  married  woman  who  is  doing  business  as  a  sole 
trader,  if  her  husband  is  in  possession  of  the  demanded  prem- 
ises with  her,  he  maybe  joined  as  a  party,  no  relief  being  asked 
against  him  except  restitution  of  the  premises. ^^ 

1  Moussler  v.  CTUStine,  "25  La.  An.  38. 

2  Fiivjiron  v.  Rideau,  14  La.  An.  805;  compare  Chalon  v.  Walker, 
7  La.  An.  477;  generally  Woodward  v.  Lurty,  11  La.  An.  280;  Tillett 
V.  Upton.  12  La.  An.  146  ;  Brunnin  v.  Womble, :«  La.  An.  805;  Hall  v. 
Carroll,  10  La.  An.  412 ;  Stewart  v.  Killmartln,  27  La.  An.  256. 

3  Succession  of  Bailey,  24  La.  An.  486  ;  Kerchner  v.  Kempton,  47 

Md.  ."iHs. 

4  Vick  V.  Pope,  81  N.  C.  26  ;  Kerchner  v.  Kempton,  47  Md.  588. 

5  Kerchner  v.  Kempton,  47  Md.  588;  Getzler  v.  Baroni,  18  111.  516 ; 
D.\;ett  r.  No.  Am.  Coal  Co.  20  Wend.  572 ;  and  see  generallv  Jackman 
V.  Robinson,  64  Mo.  292. 


197  HUSBA>-D  A>'D  WIFE.  ^  70 

6  Kerchner  v.  Kempton.  47  Md.  5S8 ;  Warner  r,  Dovp,  Xi  Md.  i-n  • 
see  Boy  kin  v.  Rain,  28  Ala.  340. 

7  AValker  v.  Smith,  28  Ala.  574  ;  Dyett  v.  North  Am.  Coal  Co.  20 
Weud.  572  ;  and  see  Mills  v.  Angela,  1  Colo.  335. 

8  Mills  V.  Angela,  1  Colo.  3*4. 

9  Trimble  v.  Miller,  24  Tex.  214 ;  Covingtons  v.  Burleson.  28  Te.x. 
370;  and  see  Laird  v.  Thomas,  22  Tex.  280;  generally  stewuri  >■.  Kill- 
martin,  27  La.  An.  456  ;  but  see  Long  v.  Dixo:),  55  Ind.  -lYi. 

10  Laird  v.  Thomas,  22  Tex.  2S0. 

11  Bridgeford  v.  Beck,  11  Bush,  542. 

12  Frarey  v.  Wheeler,  4  Oreg.  190 ;  see  also  Young  r.  Pai-.1, 10  X.  J. 
Eq.  404. 

13  Hall  V.  Eccleston,  37  Md.  520 ;  compare  Swan  i-.  Wiswail,  13 
Pick.  127. 

14  Anthonv  v.  Xve,  30  Cal.  401 ;  generallv  Swan  v.  Wiswail,  15  Hck. 
127  ;  Marks  i-.* Marsh,  9  Cal.  96. 

15  Marks  v.  Marsh,  9  Cal.  96  ;  generallv  Weston  r.  Weston,  4(j  WLs. 
134  ;  Revalk  v.  Kreamer,  8  Cal.  71. 

16  Kohner  v.  Ashenauer,  17  Cal.  580  ;  and  compare  Oliver  r.  Moore, 
28  Ohio  St.  30o. 

17  Pope  V.  Xorth,  33  III.  441. 

13    Hoyt  r.  Oliver,  59  Mo.  188  ;  compare  Bailey  r.  West,  41  III.  291. 
13    Randolph  r.  Daly,  16  X.  J.  Eq.  315. 

20  AVilson  v.  Garaghty,  70  Mo.  518 ;  Hunt  r.  Thompson,  GI  Mo.  US ; 
generally  White  v.  Rush,  58  Mo.  106. 

21  Wilson  r.  Garaghty,  70  Mo.  519. 

22  Betz  r.  MulUn,  62  Ala.  368  ;  generally  Alderson  v.  Bell,  9  Cal.  321. 

23  Howard  v.  Valentine,  20  Cal.  287 ;  generally  Smith  v.  Killeck,  5 
Gilm.  29,;. 

§  70.  STiit3  for  torts  committed  by  husband  cr  wife.  — As 
a  rule  at  common  law  the  husband  was  alone  liable  for  torts 
committed  either  by  the  husband  and  wife  jointly, ^  or  by  the 
wife  in  his  presence;^  but  for  those_Ciiijaniitted  l^Micr_iiL^ 
his  absence  both  were  liable. =*  J'^is  rule  appTies  only  to 
cases  of  pure  and  simple  tort,  and  not  where  the  basis  of 
a  fraud  charged  is  the  contract  of  the  wife.*  An  action  will 
not  lie  against  the  husband  as  executor  de  sou  tort  for  acts 
of  his  wife  done  without  his  knowledge ;  otherwise,  if  he 
advise  or  aids  her  in  the  commission  of  the  wrongful  acts.* 
The  rule  has  been  modified  by  statute  in  many  States  so  that 
now  tlie  husband  is  not  hable  for  those  torts  committed  by  the 
wife  during  coverture  that  he  neither  aided,  advised,  or  counte- 
nanced.«  Still,  although  no  longer  liable  in  damages,  he  may 
properly  be  joined  as  a  defendant  with  his  wife  in  a  suit  there- 


g   70  "WHO  MAT  SUE  AND  BE  SUED.  198 

for; '  and  if  suit  was  pending  against  both  at  the  time  of  the 
passage  of  the  statute  a  joint  judgment  may  be  entered  against 
ihem.*'  So  for  the  torts  of  the  wife  committed  before  marriage 
a  joint  action  lies  against  husband  and  wife.^  In  order,  how- 
ever, to  create  a  liability  against  the  husband  there  must  be  a 
valid  marriage.  1"  As  a  rule  the  wife  is  not  liable  for  the  torts 
or  frauds  of  the  husband,ii  unless  they  are  her  torts  also.^^ 

1  Brazil  r.  Moran,  8  Minn.  240;  Daily  r.  Houston,  58  Mo.  362; 
compare  Whitniore  r.  iJelano,  G  X.  H.  545  ;  Koadcap  v.  8ipe,  6  Gratt. 
216  ;  Miller  r.  .Sweitzer,  22  Micli.  3'Jl  ;  iShaw  v.  HuUihan,  46  Vt.  389. 

2  Brazil  r.  Moran,  8  Minn.  240  ;  generally  Curd  v.  Dodds,  6  Bush, 
fiS5 ;  compare  A\'agener  r.  Bill,  19  Barb.  321 ;  Keen  v.  Hartman,  4S  Pa. 
St.  487  ;  Martin  v.  Bobson,  65  111.  130  ;  and  see  Carleton  v.  Haywood. 
■l\)  N.  H.  318. 

3  Estill  V.  Fort,  2  Dana,  238  ;  Brazil  v.  Moran,  S  Minn.  240  ;  and  see 
McElfresh  v.  Kirkendall,  36  Iowa,  227  ;  Luse  i\  Oaks,  36  Iowa,  562  ; 
Curd  V.  Dodds,  6  Bush,  685;  Fowler  v.  Chichester,  26  Ohio  St.  13; 
compare  Keen  v.  Hartman,  48  Pa.  St.  497  ;  generally  Burt  v.  McBain, 
2!>  Mich.  2tHJ ;  Whitmore  v.  Delano,  6  N.  H.  545  ;  Brown  v.  Kemper,  27 
Md.  670  ;  Carlton  v.  Haywood,  49  X.  H.  .314  ;  Dailey  v.  Houston,  58 Mo. 
362  ;  generally  Munter  v.  Bande,  1  Mo.  App.  483. 

4  Keen  ;■.  Hartman,  48  Pa.  St.  499  ;  generallv  Carleton  t\  Hav- 
wood,  49  N.  H.  314  ;  Winslow  v.  Copeland,  Busb.  16  ;  Estill  ?-.  Fort,' 2 
Dana,  2:w  ;  Woodward  c.  Barnes,  46  Vt.  336  ;  compare  Curd  v.  Dodds, 
6  Bush,  t>s.5. 

5  Hinds  ?\  .Tones,  48  Me.  348  ;  generally  Shaw  v.  Hallahan,  46  Vt. 
389  ;  AVitcher  v.  Wilson,  47  Miss.  665. 

6  Martin  v.  Eobson,  65  111.  1-30  ;  and  see  Burt  v.  McBain,  29  Mich. 
262  ;  liicci  r.  Mueller,  41  Mich.  214  ;  Hagebush  v.  Kagland,  78  111.  41 ; 
Hill  V.  Duncan,  110  Mass.  239;  Austin  v.  Cox,  118  Mass.  60;  McCarthy 
r.  De  Best,  120 Mass.  69. 

7  Burt  V.  McBain,  29  Mich.  262  ;  see  Hagebush  v.  Bagland,  78  111. 
42  ;  generally  Austin  r.  Cox,  118  Mass.  60  ;  but  see  McCarty  v.  De  Be.st, 
120  Mass.  69. 

8  Hill  V.  Duncan,  110  Mass.  239. 

9  Hawk  r.  Harman,  5  Binn.  44;  Brown  v.  Kemper,  27  Md.  672  ; 
Overholt  v.  Ellswell,  1  Ashm.  200  ;  Jillson  v.  Wilbur,  41  X.  H.  110. 

10  Overholt  v.  Ellswell,  1  Ashm.  200. 

11  Moore  v.  Foote,  :i4  Mich.  450  ;  Witcher  v.  Wilson,  47  Miss.  665. 

12  Shaw  V.  Hallihan,  46  Vt.  393. 


199  EXECUTOKS  AND   ADinKISTEATOBS.  2  71 


CHAPTER   X. 

EXECUIOES   AXD   ADMIXISTRATOBS. 

2  71.  Generally,  suits  hy  an  administrator  or  executor. 

§  T2.  Generally  for  rlebts  or  other  property  due  the  estate. 

2  73.  Suits  relating  to  the  lands  of  the  decedent. 

?  74.  Generally,  suits  against  an  administrator  or  executor. 

?  75.  Generally  for  debts  or  property  due  from  the  estate 

§  76.  Generally  costs,  suits  relating  to  real  property  of  tin-  istaie. 

?  77.  Personal  claims  and  liabilities  of  the  administrator. 

?  73.  Suits  by  or  against  heirs,  devisees,  legatees,  etc. 

g  71.  Gsnerally,  suits  by  an  administrator  or  executor.  — 
An  executor  may  commence  an  action  in  Lis  representative 
capacity  before  probate  of  the  will  when  profert  of  letters 
testamentary  is  not  required. ^  When  a  will  is  of  doubtful 
meaning  he  has  a  right  to  apply  to  a  court  of  equity  to  have  it 
construed  and  its  trusts  declared.-^  The  nominated  executor 
and  propounder  of  a  will  is  the  proper  party  on  behalf  of  the 
will  and  those  who  claim  under  it,  to  conduct  the  litigation  of 
a  caveat  from  the  beginning  to  the  end.^  In  the  prosecution 
or  defense  of  claims  the  executor  or  administrator  is  deemed  a 
full  representative  of  the  creditors  of  the  estate  respectively 
committed  to  their  care.*  In  an  action  by  an  administrator, 
if  the  defendant  pleads  in  bar  or  the  general  issue,  lie  tliercby 
admits  the  right  of  plaintiff  to  sue;^  but  this  rule  does  not 
apply  when  an  action  is  revived  in  the  name  of  an  adminis- 
trator after  plea  filed  ;  in  such  case  ho  must  establish  his  right 
to  sue  in  the  representative  capacity.''  The  appointment  of  an 
administrator  will  not  be  rendered  void  by  the  subsequent  dis- 
covery of  a  will,  nor  does  his  authority  to  prosecute  an  existing 
suit  cease  until  a  successor  has  been  duly  installed  in  his 
stead.''  When  there  are  several  executors  named  in  a  will  only 
those  who  qualify  and  take  the  necessary  oaths  are  required  to 
join  in  an  action  for  a  debt  due  the  estate.**  This  is  also  tlio 
rule  in  equity.'*    When  one  of  several  executors  or  administiti- 


g  71  WHO  3I.VY  SUE   AND  BE  SUED.  200 

tors  bring  an  action  of  debt,  assumpsit,  or  for  tort,  the  error 
should  bo  taken  advantage  of  by  plea  in  abatement ;  i"  but  if 
the  joint  administrator  be  a  non-resident  of  the  State  he  is 
properly  omitted. ^^  In  equity  when  one  of  several  joint  exec- 
utors or  administrators  refuse  to  join  as  co-complainant,  the 
pi-oper  practice  is  to  make  him  a  defendant,  the  fact  of  his 
refusal  to  join  as  plaintiff  being  stated  in  the  bill.^^  The 
administration  of  an  estate  is  an  entire  thing;  when  granted  to 
several  and  one  dies  the  entii-e  trust  vests  in  the  survivors. ^^ 
It  is  the  general  rule  of  the  common  law  that  no  action  can  be 
brought  either  by  or  against  an  executor  or  administrator  in 
his  official  capacity  in  any  other  country  than  that  in  which  he 
receives  his  authority."  This  rule  has  been  changed  by  statute 
in  many  States  so  that  now  in  those  States  foreign  executors  or 
administrators  may  both  sue  and  be  sued  therein. ^^  Under  the 
act  of  1850  (Georgia)  to  enable  a  foreign  administrator  to  main- 
tain an  action  the  intestate  must  have  died  in  another  State.^'' 
The  rule  that  a  foreign  administrator  cannot  sue,  etc.,  does  not 
apply  when  the  action  is  brought  upon  a  judgment  previously 
obtained  by  him  in  his  character  as  administrator  in  such  for- 
eign state. ^'  The  general  rule  in  regard  to  the  revival  of 
actions  is  that  when  the  plaintiff  dies  pending  the  suit  the 
action  will  abate,  unless  his  representative  applies  to  cai'ry  it 
on  within  two  terms  after  his  death.  i»  The  revival  of  the  suit 
in  the  name  of  the  representative  is  not  the  commencement  of 
a  new  suit,  and  if  the  executor  files  an  amended  petition  merely 
for  the  purpose  of  making  himself  a  party,  the  defendant, 
although  entitled  to  notice,  cannot  claim  the  legal  delays 
allowed  for  answering  the  original  petition. i**  In  a  suit  in 
equity  one  of  several  defendants  who  voluntarily  appeared  and 
suggested  the  death  of  plaintiff  was  properly  allowed  to  have 
the  action  revived  and  continued  in  his  name  as  administra- 
tor. 2"  If  plaintiff  die  after  judgment  is  rendered  his  adminis- 
trator is  the  proper  person  to  sue  out  a  writ  of  error,^^  or  take 
an  appeal. -- 

1  .Strong  V.  Perkins,  3  N.  11.  517  ;  and  see  Halleckr.  MLxer,  16  Cal. 
5/1) ;  compare  Rubber  Co.  v.  Goodvear,  9  Wall.  701  ;  generally 
Oreasons  v.  Davis,  9  Iowa,  224  ;  Hathoru  v.  Eaton.  70  Me.  220. 


201  EXECUTORS  AND  ADMINISTBATOB3.  ^  71 

2  Bullock  V.  Bullock,  2  Dsv.  Eq.  31-1  ;  and  see  Treadwell  ?•.  forflls, 
5  Gray,  :i4S  ;  generally  Bradford  v.  Porbes,  9  Allen,  ;«i7 :  I'ufiain  r 
Collamore,  10)  Mass.  511  ;  Parker  v.  Parker,  H9  Mass,  4T.'S :  lln-nt  r' 
Washington,  13  Gratt.  527. 

3  Lucas  V.  Lucas,  39  Ga.  20G. 

4  Kennorly  v.  Shepley,  15  Mo.  648. 

5  Clark  ?-.  Rishon,  31  Me.  503  ;  generally  Vickerv  r.  Bier.  16  Mich. 
53;  Hazelhurst  v.  Morrison,  4S  Ga.  397  ;  Breckenridge  v.  Ostroni,  79 
111.  73  ;  Beam  v.  Jack,  44  Iowa,  325  ;  Jordan  v.  Pollock,  14  (i.i.  lo.">. 

G    Vickery  v.  Bier,  16  Micb.  54  ;  generally  Ream  r.  Jack,  44  Iowa. 

7  Dwightv.  Simon,  4  La.  An.  493  ;  see  also  McCauley  v.  Uarrov, 
49  Cal.  505.  j  .  , 

8  Alston  V.  Alston,  3  Ired.  443  ;  Burrow  v.  Sellers,  1  Ilavw.  iTenn  • 
502  ;  but  see  Hiil  v.  Smalley,  25  X.  J.  L.  377  ;  Heron  r.'Hoffner.  3 
Rawle,  393. 

9  Rinehart  v.  Rinehart,  15  X.  J.  Eq.  45  ;  generallv  Rubber  Co.  r. 
Goodyear,  9  Wall.  791. 

10  Macon  &  W.  Ry.  Co.  v.  Da\'is,  27  Ga.  117. 

11  Lee  V.  Cause,  2  Ired.  446;  and  see  Wheeler  v.  Bolton,  ."j4  Cal. 

303. 

12  Tooker  v.  Oakley,  10  Paige,  28D, 

13  Lewis  V.  Brooks,  G  Yerg.  180  ;  see  Clark  v.  Tlornthal,  47  Miss. 
467. 

14  S.  W.  Ry.  V.  Paulk,  24  Ga.  370 ;  generally  Brookshire  v.  Dubose, 
2  Jones  Eq.  279;  Dougherty  v.  Walker,  15  Ga.  444;  Kirkpatrick  v. 
Taylor,  10  Rich.  393 ;  Vickery  v.  Bier,  16  Mich.  53  ;  Rucks  r.  Taylor, 
49  Miss.  560 ;  S3e  also  Palmer  v.  Ins.  Co.  fs4  X.  Y.  67  ;  Carniichael  t*. 
Ray,  5  Ired.  Eq.  367 :  compare  Watson  r.  Pack.  3  \V.  Va.  155 ;  Purple 
r.  Whithed,  49  Vt.  18S  ;  but  see  Lucas  r.  Bvrne.  35  Md.  4!tl :  Morton  r. 
Hatch,  .54  Mo.  40J;  Sandford  v.  McCreedy,  28  Wis.  IftS;  Carter  r. 
Davis,  30  Ga.  G52  ;  Averitt  v.  Pope,  30  Ga.  660 ;  Dunlap  v.  Xewman,  47 
Ala.  439  ;  Chouteau  r.  Burlando,  20  Mo.  488. 

15  Generally  see  Morton  v.  Hatch,  54  3Id.  409;  Sandford  r.  Mc- 
Creedy, 23  Wis.  105,  and  authorities  supra. 

18    S.  W.  Ry.  V.  Paulk,  24  Ga  362. 

17  Rogers  v.  Hatch,  8  Xev.  38  ;  generally  Xichols  v.  Smith.  7  Hun. 
.531 ;  Rucks  r.  Tavlor,  4)  Miss.  560 ;  Page  r.  Cravens,  3  Head,  :»:$ ;  and 
see  Hunt  v.  Lyle,  6  Yerg.  412;  Swacy  v.  Scott,  9  Humph.  327; 
Greasons  v.  Davis,  9  Iowa,  225. 

13  IMcLaughlin  v.  Xeill.  3  Ired.  295 ;  and  see  Borden  r.  Thorpe.  13 
Ired.  300;  gonerallv  Peabodv  v.  Xorfolk,  98  Mass.  457;  Reynolds  r. 
Quallv,  IS  Kan.  361 ;  Douglass  v.  Morford,  7  Yerg.  81 ;  Winters  v. 
McGliee,  3  Sneed,  129. 

1")  Woodman  v.  Richardson,  15  La.  An.  508 ;  generally  succession 
of  Liles,  24La.  An.  4J0. 

20  Smith  ?•.  Pattison,  45  Miss.  626 ;  but  see  Rhea  v.  Tucker,  .Sfi  AI-u 
4.5 J;  generally  Salmon  v.  Symonds,  30  Cal.  30:i;  Hill  r.  Clay, 26 Tex. 
6.5.3. 

21  Headon  v.  Turner,  6  Ala.  67 ;  and  see  Jordan  v.  Abercromble,  15 
Ala.  530. 

22  .Slagel  v.  Murdock,  52  Mo.  521  ;  generally  Savage  v.  Walsh,  24 
Ala.  293 ;  see  Taylor  v.  Sewall,  69  Me.  149. 


^73  WHO  MAY   SrE   AND  BE  SUED.  202 

^72.  Generally,  for  debts  or  other  property  due  the  estate. 
■  —  As  a  rule  every  action  to  recover  any  property  of  the  deced- 
ent, or  any  debt  due  the  estate,  must  be  maintained  by  the 
cxecutar  or  administrator, ^  and  not  by  the  heirs,  devisees, 
legat3es,  or  creditors. 2  To  this  rule  there  are  exceptions,  as 
where  there  is  collusion  between  the  debtors  and  personal 
representatives,  or  he  is  insolvent,  or  "where  there  is  some 
other  special  case  not  exactly  defined  "  ;  ^  when  the  decedent  left 
no  debts,  and  there  has  been  no  administration  upon  his 
cstat,-.*  When  by  decree  in  chancery  a  chose  in  action  was 
assigned  a  distributee  who  was  a  feme  covert,  if  an  equit- 
able title  only  was  assigned,  suit  thereon  should  be  in 
the  name  of  the  administrator,  for  the  use  of  the  husband 
and  wife;  but  if  the  legal  title  was  transferred,  the  suit 
should  be  in  the  name  of  the  husband  and  wife.^  As  long 
as  there  are  unpaid  debts  the  recovery  for  an  injury  to  the 
estate  should  be  by  the  administrator.*^  An  action  for  damages 
for  the  death  of  a  person  per  se  at  common  law  cannot  be 
maintained.^  "When  by  statute  an  action  accrues  for  svich  in- 
jury, caused  by  reason  of  the  wrongful  act,  neglect,  or  default  of 
another,  the  action  must  be  proseciited  by  the  administrator  or 
executor  of  the  decedent;*^  and  the  action  maybe  maintained, 
although  the  decedent  was  injured  in  another  State,  provided 
the  laws  of  such  State  are  similar  to  those  in  which  the  action 
is  commenced.'*  The  executor  of  a  will  may  maintain  trespassor 
trover  for  the  personal  property  of  the  testator,  taken  after  his 
death,  although  the  executor  never  had  actual  possession  of 
such  effects ;  i"  he  may  also  maintain  trover  for  the  conversion 
of  the  title  deeds  to  decedent's  lands  committed  during  his  life- 
time.'^  "When  an  action  is  brought  upon  a  contract  or  bond  or 
note,  executed  to  the  decedent  in  his  lifetime,  it  should  be  main- 
tained by  the  administrator  or  executor  in  his  representative 
capacity  ;i2  but  if  made  to  the  ofiicer,  as  to  the  administrator, 
he  may  elect  to  treat  it  as  a  debt  due  in  his  fiduciary  capacity ;  ^^ 
or  may  bring  the  suit  in  his  individual  right. ^*  So  an  action 
upon  a  judgment  obtained  by  the  administrator  may  be  main- 
tained in  his  individual  right. ^^    When  a  note  is  made  to  an 


203  EXECUTOES  AND  ADinNISTEATOES.  §   72 

administrator  in  Lis  representative  capacity  upon  the  event  of 
his  death,  his  executor  may  maintain  a  suit  thereon  in  his  own 
name.i"  "When  the  property  of  the  estate  is  levied  upon  by 
creditors  of  the  administrator  to  enforce  a  personal  debt 
against  him,  he  may  maintain  a  bill  alone  in  his  representa- 
tive capacity  to  restrain  the  sale  of  such  goods. ^'  Vrhen  a  note 
is  exectited  to  two  joint  payees,  upon  the  death  of  one,  the 
right  of  suit  thereon  vests  in  tLe  survivor,  and  upon  his  death  in 
his  administrator.^*^  The  representative  of  a  joint  payee  and  the 
survivor  cannot  join  in  an  action  upon  such  note.^"  Upon  the 
death  of  a  co-partner,  it  is  the  right  of  the  survivor  to  settle  the 
affairs  of  the  firm,  before  he  can  be  made  liable  to  the  estate  of 
the  decedent  to  pay  a  balance  due; 2^  but  the  administrator 
may  maintain  suit  against  him  for  a  settlement  of  the  partner- 
ship, and  for  an  account. ^^  When  one  of  the  members  of  a 
firm  which  was  a  joint  maker  of  a  note  died,  and  the  note  was 
filed  as  a  claim  against  his  estate,  and  paid  by  his  adminis- 
trator, a  suit  for  contribution  is  properly  brought  in  the  name 
of  the  latter,  and  not  in  the  name  of  the  surviving  partner.^^ 
When  an  administrator  within  a  year  after  giving  notice  of  his 
appointment,  believing  the  estate  solvent,  pays  the  debt  of  his 
intestate,  he  may  if  the  estate  afterward  proves  to  be  insol- 
vent, recover  back  the  difl'erence  between  the  sum  so  paid  and 
the  amount  awarded  such  creditor  upon  final  settlement  of  the 
administration ;  ^^  if  the  administrator  has  been  removed  the 
administrator  de  honis  non  may  maintain  the  action."^*  So 
property  misappropiiated  by  the  executor  and  turned  over  to 
one  not  entitled  thereto,  may  be  recovered  back  by  the  admin- 
istrator de  bonis  non.'^^  An.  administrator  has  no  claim  against 
the  heirs  for  commissions  due  him  from  the  estate,  although  he 
may  have  expended  all  the  personal  property  in  payment  of 
debts, 2«  he  is  not  under  obligation  to  pay  off  a  judgment 
against  the  decedent  with  his  own  funds,  and  if  he  docs  he  will 
not  be  substituted  to  the  rights  of  the  judgment  creditors.^' 

1  Doughtrv  r.  Havne.  1  Car.  Law  Eep.  a^O ;  Brown  v.  I.owis.  9 
E.  I.  4'j9  :  Oerinania  Ins.  Co.  r.  Curran,  8  Kan.  16:  generally  Dixon  ?•. 
Buell,  21  111.  204  ;  Worsham  v.  Field.  18  Ark.  447  ;  Alexander  r.  Espy. 
6  Humph.  157;  Williams  v.  Hood,  11  La.  An.  113  ;  Loring  v.  Folger,  . 


g  72  "WHO  MAY  SUE  AND  BE  SUED.  201 

Grav,  505;  Bulger  v.  Taj-lor,  60  Ala.  516;  Ebbs  v.  Commonw.  11  Pa. 
St.  380 ;  compare  Rogers  v.  Kennard,  54  Tex.  m  ;  Begien  v.  Freeman, 
75  IiKl.  at!);  Palmer  r.  Insurance  Co.  84  N.  Y.  67;  and  see  Ewnig  v. 
Moses,  50  Ga.  265  ;  Allen  v.  Thomas,  3  Met.  (Ky.)  199 ;  Mason  v.  Win- 
smith,  10  8.  C.  315. 

2  Worshani  v.  Field,  18  Ark.  447;  generally  Anthony  r.  Reay,  18 
Ark.  24  ;  Mathis  v.  Sears.  3  N.  J.  L.  1043 ;  2  Pen.  (N.  J.)  1043  ;  Whelan 
V.  Edwards,  31  Ark.  723;  Alexander  v.  Espy,  6  Humph.  157;  Kam- 
mer  r.  Hope,  9  .S.  C.  254;  Montgomery  v.  Commonw.  1  IMon.  198; 
Haddix  v.  Davison,  3  Mon.  40;  Jones  v.  McCleod,  61  Ga.  604 ;  Hutton 
V.  Laws,  55  Iowa,  712;  Bate  v.  Graham,  11  N.  Y.  237  ;  Davis  v.  Davis, 
56  Ga.  37. 

3  Kincaicl  v.  Rogers,  10  Humph.  S3  ;  Dugger  v.  Taylor,  60  Ala.  517 ; 
generally  Rogers  v.  Kennard,  54  Tex.  ;^6 ;  Ford  v.  Hennessy,  70  Mo. 
593  ;  Bcrbi-.H  v.  Dupro,  6  La.  An.  4r;4  ;  McLendon  v.  Woodward,  25  Ga, 
2.55;  :Murpliy  v.  Harrison,  65  N.  C.  246;  Nance  v.  Powell,  4  Ired.  Eq. 
301 ;  Stronach  v.  Stronach,  20  Wis,  136. 

4  Begien  v.  Freeman,  75  Ind.  399 ;  and  see  Archer  v.  Jones,  26  Miss. 
588  ;  compare  Lonaillier  v.  Castille,  14  La.  An.  777. 

5  Pennington  v.  McWhirte,  8  Humph.  131. 
G    Pleveler  v.  Pleveler,  54  Tex.  57. 

7  Kramer  r.  S.  F.  M.  St.  Ry.  Co.  25  Cal.  435;  Moran  v.  Holligns, 
125  Mass.  93  ;  Leonard  v.  Columbia  S.  Nay.  Co.  84  N.  Y.  51. 

8  Kramer  v.  S.  F.  M.  St.  Rv.  Co.  25  Cal.  436;  Weidner  v.  Rankin, 
26  Ohio  St.  524 ;  Lvons  v.  C.  &  T,  Ry.  Co.  7  Ohio  St.  338 ;  Meara  v. 
Holbrook,  20  Ohio  St.  127. 

9  Leonard  v.  Columbia  S.  Nav.  Co.  84  N.  Y.  51  ;  see  Perry  r.  Car- 
michael,  95  111.  529;  compare  Woodard  v.  M.  S.  &  N.  Ind.  Ry.  Co.  10 
Ohio  St.  122  ;  Richardson  v.  IS".  Y.  C.  Rv.  Co.  98  Mass.  CO  ;  Needham  v. 
Grand  Trunk  Ry.  Co.  38  Vt.  299;  State  v.  P.  &  C.  Ry.  Co.  45  Md.  44; 
Selma,  Rome  &  Dalton  By.  Co.'sr.  Lacy,  43  Ga.  462  ;  generally  Marcy 
V.  Marcy,  32  Conn.  314. 

10  Flathorn  v.  Eaton,  70  Me.  220 ;  generally  Jones  v.  McCleod,  61 
Ga.  604  ;  Laughter  v.  Butt,  25  Ga.  178  ;  Atkins  v.  Guice,  21  Ark.  165  ; 
coniparo  Cross  v.  Terlington,  2  Murph.  10  ;  and  see  Morton  i^  Preston, 
13  Mich.  65  ;  Barnum  v.  Stone,  27  Mich.  332. 

11  Towle  t'.  Lovet,  6  Mass.  395. 

12  Mohr  V.  Sherman,  25  Ark.  9;  Shaw  v.  Wilkins,  8  Humph.  649  ; 
and  see  Swancy  v.  Scott,  9  Humph.  327  ;  Kellogg  v.  Malin,  62  Mo.  430 ; 
compare  Gage  r.  Johnson,  20  Me.  438;  Sanford  v.  McCreedy,  28  Wis. 
106  ;  Lucas  v.  Byrne,  35  ild.  49 ;  see  also  Webb  v.  Fish,  4  N.  J.  L.  374 ; 
Luques  V.  Thompson,  26  Me.  527;  Love  v.  Johnston,  72  K.  C.  420; 
Alexander  v.  Wriston,  81  N.  C.  193. 

13  Hemphill  v.  Hamilton,  11  Ark.  425;  Rector  v.  Langham,  1  Mo. 
563;  ClaiI)orn  i\  Yeoman,  15  Tex.  40  ;  compare  Luques  v.  Thompson, 
26  :Mo.  527 ;  Carlisle  v.  Burlov,  3  Me.  254  ;  Lawrence  v.  Vilas,  20  Wis. 
405  ;  Knox  v.  Bigelow,  15  Wis.  420. 

14  Cobb  V.  Wood,  8  Cush.  230  ;  Lassiter  v.  Obin,  11  Ark.  450 ;  gener- 
f^lly  Claiborn  r.  Yoeman,  15  Tex.  46  ;  Hall  r.  Pearman,  20  Tex.  170; 
r.iirton  r.  Slaughter,  26  Gratt.  723;  Laycock  r.  Oleson.  60  111.  31;  Mc- 
G"h("i  V.  Slutor,  50  Ala.  436  ;  Leland  v.  Manning,  4  Hun,  9  ;  Dunlap  v. 
JS'ewmaii ,  47  Ala.  439. 

15  Page  V.  Cravens,  3  Head,  383 ;  Hunt  i'.  Lisle,  6  Yerg.  417. 

16  Block  ?'.  Dorman,  51  Mo.  32  ;  see  McCov  v.  Gilmore,  7  Ohio,  270 ; 
Cook  V.  Holmes,  29  Mo.  63  ;  but  see  Eure  v.  Eure,  3  Dev.  207 ;  Alston  v. 


205  EXECrT0R3   XSD  ADMINISTBATOES.  ^  78 

Ja?l^son,4  Ired.  51;  Thompson  v.  Badham,  70  X.  C.  142:  .Stanley  t- 
fe:..:iley,42Conn.  540.  ■'     ' 

17    Labitut  V.  Prewett,  1  Woods,  145. 

IS    Walker  v.  Galbreath,  3  Head,  .Slfij  and  see  Bostwi?'.c  r.  Williams, 


40  111.  114 :  Sleeper  v.  Union  Ins^  Co.  65  Mo.  3^3  ;  Smiih"f.  Franklin  i 

en,  27  N.  H.  2J2 ;  Crocker  i-.  Beal, 


3Iass.  4S1  ;  generally  Adams  v.  Hackett 

1  Low.  416  ;  Teller  v.  Wetherell,  9  Mich.' 464. 


19  Bostwick  V.  Williaras,  40  III.  114 ;  generally  Ballance  r.  .Samuel, 
3  Scam.  .iSl  ;  Smith  v.  Franklin,  1  Mass.  481 ;  Jacksoa  v.  The  People 
6  Mich.  15.5. 

20  Ferguson  v.  Wright,  61  Pa.  St.  259 ;  and  see  Merritt  r.  Dickey.  38 

Zyiich.  41. 

21  Howard  r.  Patrick,  3S  Mich.  797;  Roberts  v.  Kelsey,  33  Mich. 
603 ;  and  see  Ferguson  v.  Wright,  61  Pa.  St.  201. 

22  Hosmer  v.  Burke,  26  Iowa,  355. 

23  Heard  v.  Drake,  4  Gray.  516  ;  Bliss  v.  Lee,  17  Pick.  84 ;  compare 
Austin  V.  Heiishaw,  7  Pick.  46;  Colegrove  v.  Robinson,  11  Mjt.  23J : 
Bascom  v.  Butterfield,  1  Met.  5.37. 

24  McFarlin  v.  Ringer,  51  Ga.  367 ;  and  see  Poyeler  v.  Peveler,  54 
Tex.  57. 

25  Stevens  v.  Goodell,  3  Met.  .37. 

26  Xewsom  v.  Xewsom,  3  Ired.  Eq.  412  ;  and  see  Seaton  j-.  Alcorn, 
51  Miss.  74. 

27  Seaton  r.  Alcorn,  51  Miss.  74;  compare  Williams  v.  Moore,  9 
Pick.  433  ;  Paine  v.  Drury,  10  Pick.  401. 

§  73.  Suits  relating  to  tlie  lands  of  the  decedent. —  Au 
action  t )  recover  damages  for  breach  of  contract  to  convey 
lands  to  the  decedent  may  be  maintained  by  the  administrator 
or  executor  alone  ;  ^  but  if  the  lands  are  claimed,  the  heirs 
blioiild  be  made  parties. ^  So  r.lso  the  executor  of  an  insolvent 
estate  may  maintain  a  suit  in  equity  to  set  aside  conveyances  of 
lands  made  by  the  decedent  in  fi-aud  of  creditors.^  When  the 
int3state  conveyed  lanels  to  a  creditor  to  sell,  apply  the  price  to 
the  payment  of  his  debt,  and  to  refund  the  surplus  to  the 
grantor  ;  after  his  death  his  aelministrator  may  maintain  a  bill 
tj  enforce  the  trust,  and  after  sale  under  a  decree  in  such 
action  it  is  too  late  for  the  heir  to  elect  to  take  the  land  and 
pay  the  debt.*  An  administrator  may  maintain  an  ac.ion  to 
foreclose  a  mortgage  due  the  estate ;  ^  and  as  a  rule  may  main- 
tain an  action  to  enforce  a  vendor's  lien  for  the  purchase  price 
of  land;  6  so  ux5on  the  death  of  the  mortgagor  his  administra- 
tor may  file  a  bill  to  redeem  the  mortgaged  premises,  provided 
they  are  necessary  for  payment  of  elebts ; '  rents  of  real  estate 
Parties  — 18 


§  73  WHO  MAY  SUE  A>'D  BE  SUED.  206 

accruing  before  the  death  of  the  decedent  are  assets  belonging 
to  the  administrator,  and  he  maj-  maintain  suit  therefor  in  his 
own  name  ;^  rents  accruing  after  his  death  belong  to  the  heir 
or  devisee."  An  executor  who  makes  in  his  individual  capacity 
a  lease  of  premises  belonging  to  the  estate  can  recover  upon 
such  lease  in  his  individual  capacity;^"  so  an  administrator  of 
an  insolvent  estate  whose  intestate  had  an  undivided  interest 
in  certain  real  property  as  tenant  in  common  may  maintain  a 
bill  to  enjoin  the  tenant  from  improj^erly  sub-letting  the  same, 
when  the  value  of  the  property  would  be  impaired,  and  the 
rents  thereby  diminished  ;  ^^  so  for  proper  cause  he  may  main- 
tain an  action  for  forcible  entry  and  detainer. ^^  When  land 
has  been  taken  for  a  public  use  during  the  life  of  the  intestate, 
the  right  to  recover  damages  therefor  survives  to  the  adminis- 
trator, and  he  may  maintain  suit  to  enforce  the  same ;  ^^  but  if 
the  right  accrue  after  the  death  of  the  intestate,  and  before  the 
administrator  has  obtained  license  to  sell  the  land,  the  action 
must  be  maintained  by  the  heir.^^  When  lands  belonging  to 
tenants  in  common  has  been  sold  under  an  erroneous  judgment 
they  may  unite  in  an  action  for  the  damages  thereby  sustained, 
and  if  one  be  dead  his  administrator  may  be  joined  ;'^  so  for  a 
trespass  committed  upon  lands  of  the  decedent  before  his 
death  the  administrator  may  sue ;  ^^  if  committed  after  his 
death  the  right  of  action  is  in  the  heir  or  devisee.^^  When  the 
administrator  of  the  mortgagee  of  lands  has  obtained  judgment 
and  possession  under  foreclosure  proceedings,  he  may  maintain 
trespass  against  the  heir  of  the  mortgagee  for  cutting  and 
carn,'ing  away  wood  from  the  mortgaged  premises.^**  W"hen  by 
statute  the  possession  of  the  lands  of  the  decedent  is  given  to 
the  administrator  he  may  maintain  ejectment  therefor  ;i^  in 
such  action  he  represents  the  title  which  the  decedent  had  at 
the  time  of  his  death ;  2"  but  if  the  possession  descends  to  the 
heir  the  action  should  be  maintained  in  his  name.-^  Where 
the  decedent  devised  the  lands  to  his  executor  to  sell  and  pay 
over  the  proceeds  to  the  devisee,  an  action  to  recover  the  lands 
is  properly  brought  by  the  cxecutor."-^'^  If  an  executor  under 
mistake  of  his  power  sells  lands  of  the  decedent,  and  applies 


207  EXEcrroES  a>cd  AD^rrs-isTKATOBS.  2  73 

the  proceeds  to  pajTuent  of  debts  of  the  estate,  and  tlie  pur- 
chaser is  evicted  by  the  heir,  he  will  in  equity  be  subrogated  to 
the  rights  of  the  creditors,  and  may  subject  the  lan«l  to  the 
extent  to  which  it  was  hable  to  payment  of  the  debts.-^ 

1  Breuggemau  v.  Jurgenson,  24  ilo.  8J  ;  Watson  v.  Blaine,  I2.Senr. 
&  R.  i:«  ;  s.'O  Perry  v.  Roberts,  23  Mo.  222 ;  Webster  v.  Tibh  -tt.s.  19 
Vv'Ls.  44J  ;  compare  Rutherford  t'.  Green.  2  Irecl.  Eq.  12<j;  geuerally 

Simpso:i  v.  Pease,  53  Me.  4^8. 

2  Webster  v.  Tibbetts,  19  Wis.  441 ;  and  see  Rutherford  v.  Oreen.  2 
Ired.  Eq.  122  ;  Buck  v.  Eaman,  IS  III.  .>iO. 

3  Parker  t'.  Flagg,  i:?7  Mass.  23;  Gilson  v.  Hutchinson,  120  Mass. 
32  ;  Holland  v.  Cruf  t,  20  Pick.  32.i  ;  see  also  GuUbeau  v.  Thibodean,  ao 
La.  An.  10  «  ;  compare  King  v.  Bovd,4  Oreg.  32'J ;  Waddell  v.  Williams, 
37  Tex.  ;i52  ;  Hunt  v.  Butterworth,  21  Tex.  i:J6. 

4  Craig  v.  Jennings,  31  Ohio  St.  86 ;  aud  see  Nerici  v.  Papln,  11 
Mo.  44. 

5  Dixon  V.  Cuyler,  27  Ga.  249  ;  generally  Collier  v.  Collins.  9  Iowa, 
127  ;  Laudis  v.  Olds,  9  Minn.  91  ;  compare  Stuart  v.  Scott,  22  Kan.  hit, 

6  Knight  v.  Blantoii,  51  Ala.  'iH  :  generallv  Crosbv  w  Otis, ;«  Me. 
259  ;  Chapman  v.  Callahan,  65  3to.  310 ;  Sweet  v.  Jeffries,  48  Mo.  2*0. 

7  Merriam  v.  Barton,  14  Vt.  513 ;  Sheldon  v.  Bradley,  37  Conn.  338. 


8  Crawford  v.  Ginn,  :i5  Iowa,  5J0;  and  see  Doe  v.  Clark.  42  Iowa, 
123  ;  Parkman  v.  Aicardi,  :J4  Ala.  30S  ;  compare  Kimball  r.  Sumner,  W 
Me.  307  ;  Brewer  v.  Conover,  IS  X.  J.  L.  215. 

9  Mills  I'.  Merrymau.  49  Me.  65;  Kimball  v.  Sumner,  G2  Me.  307; 
Stinson  v.  Stinsou.  liS  Me.  593;  and  see  Lucy  r.  Lucy,  5.^  N.  H.  10; 
Gibson  v.  Farlev,  16  Mass.  231 ;  Foltz  v.  Prouse,  17  111.  49:1 ;  Smith  r. 
Bland,  7  Mon.  B.  22. 

10  Kingsland  v.  Rvckman.  5  Daly,  14  ;  and  see  McDowell,  »•.  Hen- 
drix.  71  Ind.  2S7.'  compare  Sliawhan  v.  Long,  26  Iowa,  -MX ;  Kuey  v. 
Huey,  26  Iowa,  5'28. 

11  Parkman  v.  Aicardi,  34  Ala.  393. 

12  Lass  V.  Eisleben,  50  Mo.  123. 

13  Moore  v.  Boston,  8  Cush.  277. 

14  Boynton  v.  P.  &  S.  Ry.  Co.  4  Cush.  463. 

15  Reynolds  v.  Hosmer,  45  Cal.  630. 

16  Haight  r.  Green,  19  Cal.  117;  generallv  Henderson  r.  Peck,  3 
Humph.  247  ;  but  see  Chalk  r.  McAlily,  10  Rich.  93;  compare  I-^ling- 
ton  r,  Bennett,  56  Ga.  15J;  Foristi'.  Androscoggin  Co.  52  X.  H.  4ii. 

17  Aubochon  r.  Lorv,  23  Mo.  99;  see  H.  &,  T.  C.  Ry.  Co.  r.  Kuapp, 
51  Tex.  569 ;  geuerally  Richardson  r.  Crooker,  7  Gray,  100. 

IS  Palmer  v.  Stevens,  11  Cush.  150 ;  and  compare  Kunzie  r.  WLxom, 
39  Mich.  385. 

19  Curtis  V.  Herrick,  14  Cal.  119  ;  and  see  Cunningham  »•.  Ashley,  45 
Cal.  4^5  ;  Haight  v.  Green,  19  Cal.  117  ;  Teschemacher  r.  Thomiv^oii.  IH 
Cal.  20  ;  Eoff  r.  Thompkins,  6(i  Mo.  225 ;  McClelland  r.  DirkciiMin.  2 
Utah,  101;  compare  Hamilton  v.  Homer,  46  Miss.  390:  Milhcan  v. 
MiiUcan,  24  Tex.  436  ;  Gunter  v.  Fox,  51  Tex.  387 ;  Ledoux  r.  Burton,  30 
La.  An.  576. 

20  CuniMugham  r.  Ashley,  4 J  Col.  491 ;  see  Jordiui  v.  Pollock,  14 
Ga.  155. 


g   74  "WHO  MAT  SUE   A>-D  BE  SUED.  208 

21  Aubuchon  v.  Lory,  23  Mo.  99. 

22  Jennings  v.  Monks,  3  Met.  (Ky.)  105;  Smith  v.  Doe,  3  Marsh. 
J.  J.  «>.>5;  and  compare  Churchill  v.  Corker,  25  Ga,  493;  Jonekin  v. 
Holland.  7  Ga.  589. 

23  Shrings  v.  Haven,  3  Jones  Eq.  98;  Scott  v.  Du:in.  1  Dev.  &  B, 
427. 

§  74.  Generally,  suits  against  an  administrator  or  ex- 
ecutcr.  —  if  a  suit  is  brought  against  a  person  who  is  au 
administrator,  it  may  be  assumed  to  be  against  him  in  his 
official  capacity  Avhcn  the  suit  is  one  to  which  he  may  plead  as 
administrator;  the  title  set  up  is  good  against  him  only  as 
administrator,  the  relief  asked  is  against  him  as  administrator, 
and  the  decree  in  which  may  be  against  him  as  administrator.! 
If  au  action  be  brought  against  an  administrator  as  an  indi- 
vidual, the  pleadings  may  be  amended  by  inserting  his  repre- 
sentative character  and  the  necessary  averments  showing  that 
the  debt  is  properly  chargeable  upon  the  estate.^  So  an  amend- 
ment changing  the  description  of  defendant  from  X.  Y.,  admin- 
istrator, to  X.  Y,,  executor,  was  properly  allowed.^  When  a 
person  is  both  executor  and  a  devisee  he  may  be  sued  in  both 
capacities  in  the  same  suit.*  "When  contracts  originate  in  the 
lifetime  of  the  decedent  the  executor  is  liable  in  his  representa- 
tive capacity ;  but  in  causes  of  action  wholly  occurring  after 
his  death  the  executor  is  liable  individually.^  When  the  de- 
fendant dies  pending  suit,  if  it  survives,  the  administrator  of 
his  estate  becomes  a  necessary  jiarty  and  should  be  made  party 
defendant.*'  If  the  death  occur  after  verdict  judgment  may  be 
entered  thereon,  the  executor  or  aelministrator  being  substi- 
tuted ;  but  action  wpon  the  judgment  need  not  be  maintained 
against  such  representatives.  In  order  to  secure  payment  from 
the  estate  a  certified  or  authenticated  copy  of  the  juelgment 
filed  in  the  probate  court  is  sufficient,  without  any  statute  upon 
the  subject.'  When  the  widow  has  qualified  as  tutrix,  suit  may 
be  commenced  against  h^  r  even  though  she  has  not  qualified 
as  admin isti-atrix;  but  in  order  to  bind  the  succession  the 
administratrix  must  be  maele  a  party  when  appointed.''  As  a 
rule  foreign  executors  are  not  recognized  in  their  official  capa- 
city by  domestic  courts  of  law,  and  cannot  be  sued  therein  as 


209  EXECrXOES  and  ADMINISTIlATOnS.  ^  74 

such  officers.^  The  question  involved  is  a  matt.-r  of  jiulicial 
discretion  rather  than  of  jurisdiction, i"  and  in  certain  casta 
suits,  as  to  compel  an  account  of  a  trust  fund,"  to  enforc»-  pay- 
ment of  iutesest  on  a  Isgacy,^''^  have  been  maintained.  When 
one  of  the  makers  of  a  joint  contract  dies  the  rij,'lit  of  action 
thereon  survives  against  the  living  maker;  the  representative 
of  the  decedent  can  never  be  joined  with  the  survivor  in  an 
action  at  law,!^  i,^^^  jj^^iy  l^g  sued  alone  in  the  same  manner  as 
though  the  contract  were  joint  and  several.'*  To  a  bill  in 
chancery  all  who  may  be  liable  upon  the  obligation,  as  well 
the  representatives  of  a  deceased  obligor  as  the  survivor,  must 
be  made  parties  defendant. ^^  "Where  a  bill  charges  that  one  of 
two  joint  obligors  is  insolvent,  the  court,  especially  in  favor  of 
a  surety,  will  sustain  the  bill  against  the  representatives  of  the 
other.i''  In  actions  upon  joint  and  several  contracts  (unless 
the  rule  is  changed  by  statute)  the  administrator  of  a  decea.s€d 
obligor  cannot  be  joined  with  the  survivor. ''  Tie  execute trs  of 
a  deceased  partner  cannot  be  joined  with  the  surviving  partner 
in  an  action  at  law  to  collect  a  debt  against  the  partnership ; '" 
but  an  action  may  be  maintained  against  the  executors  of  the 
deceased  partner, i''  even  though  the  estate  be  insolvent,-'*'  or 
another  action  be  pending  against  the  survivor  to  recover  the 
same  debt.^^  To  a  bill  in  equity  against  the  executor  of  the 
deceased  partner  to  recover  the  firm  debt  the  surviving  partner 
(insolvent)  was  properly  joined. ■^^  if  jjoth  partners  l>e  deatl 
tlie  executors  of  their  separate  estates  cannot  be  joined  m  an 
action  to  recover  a  firm  debt. 2=*  Tlie  surviving  partner  cannot 
recover  from  the  estate  of  his  deceased  co-partner  on  account 
of  firm  property  held  by  the  latter  without  showing  tiiat  the 
business  of  the  partnership  is  closed,  its  debts  paid,  and 
accounts  settled.  ^^ 

1  Irving  V.  Melton,  27  Ga.  3-31 ;  generally  Rhea  v.  Turyear,  'Ji;  .\  rk. 

2  Poole  r.  Hines,  52  Ga.  502;  generally  Tyler  r.  Langworthy,  S7 
Iowa,  000 ;  Walclsmith  v.  WaUlsmith.  2  Ohio,  160. 

3  Windsor  v.  Bell.  61  Ga.  676. 

4  Rvan  i.  Jones,  15  111.  6 ;  generally  Deuegre  r.  Doiiegre, :«  La. 
An.  690: 


§  74  WHO  MAY  SUE  AND  BE  SUED  210 

5  Knrchner  r.  McRae,  80  N.  C.  223  ;  generally"  Kessler  v.  Hall,  64 
N.  C.  01  ;  Hull  ?'.  Craige,  65  N.  C.  52  ;  Smith  v.  Fellows,  58  Ala.  471 ; 
Mathews  V.  Muthews.  o6  Ala.  2lM. 

6  Parshall  v.  INIoodv,  2-1  Iowa,  318  ;  generally  Tupper  v.  Oassell,  45 
Miss.  ;i.>4  ;  Berkpy  v.  .liuld,  27  JVIuiii.  476  ;  Piatt  )-.  .St.  Clair.  6  Ohio,  555; 
Hayden  r.  Vreeland,  ;J7  X.  V.  373;  Norton  v.  Jamison,  23  La.  An.  10"2. 

7  Bcrkev  v.  Judd.  27  Minn.  476;  compare  Norton  v.  Jamison,  23 
La.  An.  102. 

8  Scuddy  v.  Shaffer,  14  La.  An.  569 :  generally  Mathews  v.  Math- 
ews, 56  Ala.  2i4. 

9  Field  v.  Gibson,  56  How.  Pr.  233  ;  generally  Leonard  v.  Putnam, 
51  N.  H.  24!) ;  Magraw  v.  Irwin,  87  Pa.  St.  141 ;  fewearingen  t\  Pendle- 
ton, 4  Serg.  &  li.  3J6  ;  Evans  v.  Tatem, 

10  Despard  v.  Churchill,  53  N.  Y.  198 ;  and  see  Brown  ?'.  Knapp,  17 
Hun,  161. 

11  McNamara  v.  Dwyer,  7  Paige,  240;  generally  Swearingen  ?'. 
Pendleton,  4  Serg.  <fe  R.  395;  Ashmead  v.  Colby,  26  Conn.  ;.08  ;  and  see 
Jackson  ?>.  Johnson,  34  Ga.  511. 

12  Brown  v.  Knapp,  17  Hun,  161 ;  and  see  Despard  v.  Churchill,  53 
N.  Y.  li)8 ;  Olney  v.  Angell,  5  R.  I.  201. 

13  Maples  v.  Geller,  1  Nev.  237  ;  generallj"^  Cochrane  v.  Cushing,  124 
Mass.  21i) ;  New  Haven  <fe  Northampton  Co.  v.  Hayden,  119  Mass.  b64  ; 
State  Treasurer  *•.  Friott,  24  Vt.  136;  Kich  ?'.  Scivers,  73  111.  l!)4  ;  Boi:- 
iion  V.  Norton,  3G.  Greene,  228  ;  Co.  of  Wapello  v.  Bigham,  10  Iowa,  41 ; 
Fisher  7-.  Allen,  36  N.  J.  203;  Lawrence  v.  Interest,  3  N.  J.  724  ;  but 
see  Dingman  v.  Amsink,  77  Pa.  St.  117;  contra,  Taylor  ?'.  Tavlor,  5 
Humph.  110;  Burgoyne  v.  Ohio  Ins.  Co.  6  Ohio  St.  586;  Chatfield  v. 
Faran,  1  Lisn.  480;  compare  Henderson  v.  Talhert,  5  Smedes  <fe  M. 
110;  Bradford  v.  Curlee,  41  Mass.  560;  and  see  Simpson  v.  Young,  2 
Humph.  51.") ;  Trimier  v.  Thompson,  40  8.  C.  178;  compare  also  Hal- 
stead  V.  Cockroft,  49  How.  Pr.  .342;  Dennis  v.  Charlick,  6  Hun,  22; 
Eldred  v.  First  Nat.  Bank,  71  Ind.  543. 

14  Curtis  V.  Mansfield,  11  Cush.  154  ;  generally  Cochrane  ?>.  Cush- 
ing, 124  Mass.  219;  Cowley  v.  Patch,  120  Mass.  138;  Thompson  v. 
Johnson,  40  N.  J.  I^.  221  ;  and  see  Bolinger  v.  Fowler,  14  Ark.  27. 

15  White  V.  Johnson,  4  Dana,  506  ;  but  see  Wiley  ?'.  Pinson,  23  Tex. 
488  ;  Martin  v.  Harrison,  2  Tex.  456  ;  compare  Freeman  v.  Scofield,  16 
N.  J.  Kq.  2S. 

16  H.-izcn  ?'.  Durling,  2  N.  J.  Eq.  135  ;  generallv  Randall  v.  Sacket, 
56  How.  Pr.  226. 

17  Humphreys  ?'.  Crane,  5  Cal.  175  ;  May  v.  Hanson,  6  Cal.  G43  ; 
generally  I'eople  v.  Jenkins,  17  Cal.  503;  Cummiiigs  v.  Poople,  bO  111. 
133;  Harrell  v.  Park,  32  Ga.  555;  compare  McArdle  ?'.  Bullock,  45  Ga. 
91 ;  and  see  Trimmier  v.  Thompson,  10  S.  C.  178 ;  Ash  v.  Guieril,  12  The 
Reporter,  281  (97  Pa.  St.  4!;5). 

18  Ric'hter  v.  Poppenhansen,  42  N.  Y.  376 ;  Hedden  v.  Van  Ness,  2 
N,  J.  L.  84  ;  but  see  Garrard  v.  Dawson,  49  Ga.  41^. 

10  Brewster  v.  Sterrett,  32  Pa.  St.  118;  generally  Saving  <fe  Loan 
Soc.  V.  Gihbs,  21  Cal.  609;  Ex  parte  Ware,  48  Ala.  225;  Lang  ?'.  Kep- 
pele,  1  Bin.  124  ;  Lizard  v.  Gossett,  1  La.  An.  138. 

20  Sampson  ?-.  Shaw,  101  Mass.  152;  but  see  McNally  v.  Kerswell, 
37  Me.  552. 

21  Cr^swell  V.  Blank,  3  Grant  Cas.  320. 

22  Butts  r.  Genning,  5  Paige,  2,56;  generally  Anderson  v.  Pollard, 
62  Ga.  50 ;  Carter  v.  Currie,  5  Call,  159 ;  see  Hutton  v.  Laws,  55  Iowa,  712. 


211  EXECUTORS  A>T)  ADMINISTRATOBS.  7.  75 

23  McXallyr-.  KerswelI,37Me.552;  but  see  Kottwitz  ^^  Ak-xaiider, 

24  Stanberry  v.  Cattel,  00  Iowa,  617;  see  W'ilby  v.  Phiniipv  15 
Mass.  120;  but  compare  Calvert  f.  Murlow,  18  .via.  70  :  Cravi-  r>ir-i',,.r 
9CaL6:iG.  •  '   '^• 

\  75.  Ganerally  fcr  d3bt3  or  property  due  from  tae  eetate. 
— As  a  contract  to  pjrform  certain  duties  growing  out  of  txiat^ 
ing  relations  ceases  to  be  binding  when  the  relation  ceascH,  so 
an  action  for  breach  thereof  after  the  death  of  one  of  tlic  con- 
tracting parties  cannot  be  maintained  against  his  administrator.* 
When  an  administrator  pendente  lite  has  been  ai)pointtd,  an 
action  for  services  rendered  to  the  decedent  in  his  lifutimo  may 
be  maintained  against  him.^  When  a  joint  surety  pays  the 
money  dne  noon  a  joint  obligation,  he  may  maintain  an  action 
against  the  representatives  of  a  deceased  joint  surety,  to  recover 
an  aliquot  portion  of  the  money  so  paid  ;  '^  but  a  legatee  cannot 
pay  the  debts  of  the  estate  and  then  maintain  a  bill  against  the 
execiitor  for  repayment.^  In  suits  against  an  administrator,  a 
demand,  tue  consideration  of  which  springs  from  or  is  coniuctcd 
with  the  estate  of  an  intestate,  though  arising  after  his  death, 
may  be  joiueel  in  the  same  suit  with  a  demand  the  consideration 
and  promise  of  which  was  complete  in  the  lifetime  of  the  iute»- 
tate.^  The  general  right  to  sue  an  executor  or  adaiinistrator 
upon  a  claim  or  demand  against  the  estate  of  the  dcexdent  haa 
been  taken  away  by  statute  in  many  States,  so  that  now  no 
action  can  be  maintaineel  thereon  until  such  claims  have  lx?cn 
presented  to  such  representative  of  the  estate  for  settlcnunt  ;* 
in  case  of  a  mortgage,  if  it  be  not  presented  for  allowance,  the 
holder  will  be  confineel  to  the  property  covered  by  it.  and  can- 
not resort  to  the  general  assets  of  the  estate  in  case  of  deficiency 
in  the  payment  of  his  debt  upon  foreclosure  sale  of  the  prem- 
ises.^ An  action  will  not  lie  against  the  executor  of  the  assignex) 
of  a  mortgage,  to  recover  the  penalty  given  by  statute  for  re- 
fusing or  neglecting  to  discharge  it  after  payment."  If  the 
defendant  would  tako  advantage  of  the  fact  that  the  nuit  was 
prematurely  brought  (within  one  year  from  the  gi-anting  of 
administration),  he  sliould  plead  it  in  abatement  and  not  in 
bar;»  the  time  during  which  the  administrator  may  be  sued 


g  75  WHO   MAY   SUE   AND  BE   SUED.  212 

begins  from  time  legal  notice  of  his  appointment  is  given,  and 
tlie  time  during  which  the  official  action  is  suspended,  pending 
appeal  from  the  order  of  appointment  is  not  included  ;  ^^  after 
the  administration  has  been  closed  and  the  heirs  put  in  posses- 
f-ion,  an  action  cannot  be  enforced  by  a  creditor  against  the 
estate.'!  "When  a  claim  is  sought  to  be  established  against  the 
estate  of  a  deceased  person,  the  personal  representative  is  the 
only  necessary  party  defendant ;  ^'^  for  contracts  originating 
during  the  nfetime  of  the  decedent,  the  executor  is  liable  in 
his  representative  capacity,  but  for  those  wholly  occurring 
after  his  death,  the  executor  or  administrator  is  liable  person- 
ally ;  '^  so  an  executor  empowered  by  the  will  of  decedent  to 
carry  on  his  business  after  his  decease  is  personally  liable  for 
the  debts  thus  contracted.'*  When  money  is  collected  by  an 
administrator  on  a  judgment  founded  upon  a  suit  in  the  name 
of  tlie  decidcnt,  he  is  not  individually  liable  therefor  to  a 
person  who  owned  an  interest  therein,  unless  he  had  notice 
thereof,  when  he  appropriated  it  to  use  of  the  estate,  or  unless 
he  acted  in  bad  faith  in  leaving  it  over.'^  An  executor  de  son 
tort  is  one  who  assumes  the  office  by  intrusion,  or  interferes 
with  the  assets  without  authority,  to  recover  against  such  exe- 
cutor he  should  be  declared  against  as  executor.'*'  An  action 
should  not  in  the  first  instance  be  prosecuted  against  the  heirs 
of  the  decedent;''  the  estate  must  be  administered  upon;  but 
upon  petition  showing  that  the  executor  was  defending  such 
suit  in  bad  faith,  they  may  be  alloweel  to  defend  the  action.'^ 
It  is  the  duty  of  the  administrator,  when  sued  by  a  creditor,  so 
to  plead  as  to  protect  the  rights  of  all  the  creditors  of  the 
estate."*  When  the  administrator  is  wasting  the  assets  of  the 
estate  any  heir  or  creditor  may  apply  to  a  court  of  chancery  to 
liave  them  placed  in  the  hands  of  a  receiver,  and  the  estate 
wound  up  under  its  elirection.^^  In  a  suit  upon  the  adminis- 
trator's bond,  any  person  interested  in  the  estate  may  join  for  a 
devastavit  of  the  administrator.'-^'  In  an  action  upon  such  bond 
for  not  accounting  within  the  proper  time,  it  is  not  a  complete 
defense  that  an  account  was  made  after  suit  brought. 22  On  tlie 
death,  pending  suit,  of  one  of  two  joint  administrators  sued  for 


213  EXECrTOKS  AND  ADMOaSTBATOBS.  \   75 

a  devastavit,  upon  suggestion  of  the  death  made  of  record,  the 
action  may  proceed  against  the  survivor.^  The  suretieH  u{  an 
administrator  cannot  be  joined  as  substantial  parties  to  a  bill 
against  the  representatives  of  such  administrator,  which  in 
grounded  upon  an  alleged  devastavit  of  the  former  atlniinis- 
trator."-^*  Creditors  have  the  right  to  assign  the  non-payin»nt 
of  their  debts  as  a  breach  of  the  administration  bond,  and  to 
put  it  in  suit;-^  nor  need  an  action  have  been  maintained 
against  the  administrator  alone  in  the  fii"st  instance  ;-*''  sevtral 
breaches  may  be  joined  in  the  same  action,'^'  even  though  they 
relate  to  several  persons,  provided  they  are  covered  by  the 
bond.^** 

1  Bland  v.  Umstead,  23  Pa.  St.  316. 

2  Benson  v.  Wolf,  43  N.  J.  L.  79 ;  compare  generally  Ross  r.  Ilnr- 
den,  12  Jones  &  S.  28  ;  Mathews  v.  Mathews,  56  Ala.  2*1. 

3  8tothofr  r.  Dunham,  19  X.  J.  L.  1S2 ;  and  see  Collins  r.  Weiser,  12 
Serg.  &  B.  98  ;  Packard  v.  Nye,  2  Met.  50. 

4  Alston  ?'.  Batchelor,6  Ired.  Eq.  368  ;  generally  Davidson  r.  Potts, 
7  Ired.  Eq.  274. 

5  Howard  v.  Powers,  6  Ohio,  96  ;  and  see  Malin  v.  Bull.  13  Sen?.  * 
R.  441  ;  generally  Hovev  v.  Newton,  11  Pick.  422  :  Greenlenf  ?•.  AIUmi. 
127  M:ihs.  253;  Hapgood  v.  Houghton,  10  Pick.  154;  Mathews  r, 
Mathews,  .56  Ala.  294. 

6  Generally  Keenan  v.  Saxton.  13  Ohio,  42  ;  Heutsrh  v.  Portor.  10 
Cal.  55J  ;  Ellis 'c  Polhemus,  27  Cal.  ;i53  ;  In  re  McCau.sIand.  .52  (  al.  :*\>  ; 
compare  University  of  Vt.  r.  Baxter,  43  Nt.  6-50:  and  see  Huniimrlo 
V.  Kramer.  12  Ohio  St.  253;  Co.  of  Linn  i'.  Day,  16  Iowa,  162  :  s.-i-  also 
Sampson  v.  Sampson,  63  Me.  3:C 

7  Null  v.  Jones,  5  Neb.  503 ;  generally  Fallon  r,  Butler.  21  (.al.  •>. 

8  Page  V.  Johnson,  23  Wis.  296, 

9  Company  v.  Barnes,  4S  N.  H.  28. 

10  McPhetres  v.  Halley,  32  Me.  75. 

11  Durnford  v.  Urquhart,  24  La.  An.  114;  generally  Lanccy  v. 
White,  6S  Me.  30. 

12  Jones  v.  Reid,  12  W.  Va.  363 ;  and  see  Melick  v.  Mellck.  17  N.  J. 
Eq.  157  ;  Dias  v.  Bouchand,  10  Paige,  456  ;  but  compare  Long  v.  Majos- 
tre,  1  Johns.  Ch.  306  ;  generally  McKenzie  r.  Havard,  12  Mart.  H>{. 

13  Kerchner  v.  McRea,  80  N.  C.  221 ;  generally  Kessler  f.  H:ill.  •■i 
N.  C.  61 ;  Hall  v.  Craige.  65  N.  C.  52  ;  Solliday  r.  Bissey.  12  Pa.  - 
Grier  v.  Huston,  8  Serg.  &  R.  405;  Tryon  v.  Oxley.3G.  (ir-M 
Beattv  V.  Gingles,  8  Jones,  303;  compare  Wile  v.  W  right,*-  !«'" 
Voorl'iies  v.  Embank.  6  Iowa.  275;  Hapgood  r.  Houghton,  i"  I'l' k. 
155;  Adams  v.  Butts,  16  Pick.  ;«4 ;  and  see  Beatty  v.  lete,  9  Uu  Au. 
130  ;  Davis  v.  French,  20  Me.  22. 

14  Liable  v.  Ferry,  32  N.  J.  Eq.  792. 

15  Call  V.  Houdlette,  70  Me.  312  ;  generally  Cronan  r.  Cottlng.  93 
Mass.  3;J6. 


g  76  WHO  MAY  SUE  AXD  BE   SUED.  214 

16  Lee  1'.  Chase,  58  Me.  435 ;  generally  Meigan  v.  M'Donough,  10 
Watts,  "iSS;  Cninkleton  v.  Wilson,  1  Browne  (Pa.)  364;  Stockton  v. 
Wilson,  3  Pt'un.  &  W.  129 ;  Davis  v.  Davis,  56  Ga.  ;J8. 

17  Reynolds  v.  May,  4  G.  Greene,  283. 

18  Lusk  V.  Anderson,  1  Met.  (Ky.)42S ;  generally  Winslovv  v.  Minn. 
<fe  Pac.  Ry.  Co.  4  Minn.  315. 

19  Davis  V.  Smith,  5  Ga.  281. 

20  Du  Val  V.  Marshall,  30  Ark.  233. 

21  Piicherr.  Drennen,51  Miss.874;  see  State  i'.  Humphrej's,  7  Ohio, 
224. 

22  Clark  r.  Cross,  20  Iowa,  52. 

23  Castor  v.  I'ace,  24  Ga.  137  ;  see  Farris  v.  Berry,  33  Tex.  704. 

24  Rorback  v.  Dorsheimer,  25  X.  J.  Eq.  517. 

25  Washington  v.  Hunt,  1  Dev.  475 ;  Strickland  r.  Murphy,  7  Jones, 
S43. 

26  Strickland  v.  Murphy.  7  Jones,  243 ;  generally  Williams  v.  Hicks, 
1  Murph.  437. 

•27    Hoover  v.  Berryhill,  84  N.  C.  133. 
28    Hoover  v.  Berryhill,  84  N.  C.  133. 

§  76.  Generally,  torts,  suits  relating  to  real  property  of 
the  estate.  — A  cause  of  action,  though  sounding  in  tort,  if 
founded  upon  an  implied  contract,  survives  against  the  per- 
sonal representatives,  provided  plaintiff  has  the  right  to  waive 
the  tort,  and  bring  an  action  on  the  contract.^  An  action  for 
the  negligence  or  deceit  of  a  deceased  wrong-doer  will  lie 
(statute)  against  his  personal  representative.^  When  the  in- 
terests of  the  estate  require  it,  the  executor  should  take  out 
letters  testamentary  in  another  State,  and  a  failure  so  to  do 
amounts  to  a  devastavit.^  If  the  administrator  has  in  his  pos- 
session a  note  due  from  the  decedent,  and  unjustly  refuses  to  pay 
it,  or  deliver  it  to  the  owner,  an  action  may  be  maintained  to 
recover  the  amount  from  the  assets  of  the  estate  ;^  so  an  action 
may  be  maintained  against  an  executor  to  recover  for  timber  cut 
and  carried  away  without  authority  by  the  testate  in  his  life- 
time.* An  action  will  lie  against  the  administrator  (Code)  to 
recover  fo-  injuries  inflicted  upon  the  person  of  plaintiff  by  the 
decedent."  "Where  pending  an  action  against  a  sheriff'  for  the 
default  of  his  deputy  the  sheriff  died,  it  was  held  that  the  action 
survived  against  his  administrator ;  ^  but  an  action  for  his 
own  misconduct  does  not  survive.**  By  force  of  the  statute  an 
action  for  erecting  a  nuisance  survives,  and  may  be  prosecuted 


215  EXECUTORS  AXD  ADMINISTnATOKS.  g  77 

against  the  executor;'*  but  in  absence  of  statute  an  action  for 
the  conversion  of  property  does  not  lie  against  the  adininiK- 
trator  of  the  wrong-doer.^"  In  an  action  against  an  executor 
for  his  personal  tort  it  U  error  to  name  him  as  executor."  In 
a  mere  possessory  action,  when  the  title  to  the  premises  is  not 
involved,  it  is  sufficient  to  revive  against  the  a<lministrator ; 
the  heirs  need  not  be  joined.'-  An  action  of  ejectment  do-« 
not  abate  by  reason  of  the  death  of  the  lessor  of  the  plaintiff;  '^ 
but  if  one  of  several  defendants  die  pending  the  suit  the  action 
cannot  be  revived  against  his  administrator  and  licirs,  or  cither 
of  them,  so  as  to  proceed  joint'y  against  them  and  the  surviv- 
ing defendants.!*  An  heir  may  maintain  ejectment  against  the 
administrator  to  recover  his  share  of  the  lands  of  the  ancest;>r 
in  absence  of  any  showing  of  authority  by  the  administrator  to 
take  possession  of  such  lands. ^^ 

1  State  r.  Starkweather,  8  Jones  &  S.  4oS ;  compare  Tlchenor  r. 
Hayes,  41  X.  J.  L.  193  ;  generally  Butner  v.  Keelhn,  6  Jones,  61. 

2  Tichenor  v.  Hayes,  41  N.  J.  L.  19o. 

3  Helme  v.  Landers,  3  Hawks,  5G3;  generally  Mendenhall  r. 
Benbow,  84  X.  C.  648. 

4  Prescott  v.  Ward,  10  Allen,  203. 

5  Cooper  v.  Crane,  9  N.  J.  L.  173;  compare  Browne  v.  Bliclc,  3 
Murph.  517  ;  Dickenson  v.  Stoll,  24  N.  J.  L.  ool ;  uiul  see  Shields  »-. 
Lawrence,  72  N.  C.  43  ;  generally  Smiih  r.  Xicholson,  0  I  a.  An.  705. 

6  McKinlav  v.  McGregor,  10  Iowa.  112  ;  and  generally  Carson  r. 
McFanden,  10  Iowa,  91. 

7  Dayton  v.  Lynes,  30  Conn.  354. 

8  Rhodes  v.  Gregorv.  2  Havw.  ;«1  ;  generally  Moics  r.  Spra^uo.  9 
R.  I.  &13  ;  Mason  v.  Ballew,  13  trod.  483 

9  Aldrich  v.  Howard,  8  R.  I.  i2.j. 

10  Cherrv  v.  Hardin.  4  Heisk.  200;  generally  Terhnne  v.  Bray.  \i, 
N.  J.  L.  54  ;  Schott  v.  Sage,  4  Phila.  87. 

11  "W'engert  t\  Beashore.  1  Pa.  2;io. 

12  Preston  ?•.  Mhoon,  43  Miss,  623;  generally  Ridgeway  v.  V,";iut;h. 
51  Ala.  424. 

13  Wilson  V.  Hall,  13  Ired.  483. 

14  Jay  V.  Stein,  43  Ala.  520  ;  and  see  Hoffman  v.  St,  Clair.  43  Mioh. 
a51. 

15  Warren  ?•.  Tobev,  32  Mich.  45 ;  but  compare  Chapman  r.  Ilollls- 
ter,  42  Cal.  433;  Meeks  v.  Kirbv.  47  Cal.  16S ;  Cunningh.iri  v.  .A.-^IiKy. 
45  Cal.  143. 

9  77.  Personal  claims  and  liabilities  of  Iho  administra- 
tor.—An  administrator  cannot  judicially,  in  an  action  at  law, 


g  77  WHO  -HAY  SrE  AXD  BE   SUED.  216 

enforce  a  claim  due  himself  from  the  estate: ^  biit  may  main- 
tain an  action  against  one  who  was  his  co-administrator,  and 
who  had  been  removed  before  the  commencement  of  the  suit, 
to  recover  the  purchase  price  of  property  bought  by  the  latter 
at  a  joint  sale  made  by  them,  the  payment  of  which  became 
due  before  his  removal.''  An  executor  is  not  liable  for  the  loss 
of  assets  which  have  come  into  the  hands  of  his  co-executor, 
and  over  which  he  has  had  no  control;^  but  he  is  liable  for 
funds  voluntarily  placed  in  the  hands  of  the  co-executor  and 
wasted.*  In  equity  the  executor  who  has  proved  the  will  may 
sue  one  who  was  appointed  co-executor,  but  who  has  not 
proved  the  will  nor  renounced  the  executorship,  for  funds  of  the 
estate  which  have  come  into  his  hands. ^  A.  and  X,  were  admin- 
istrators of  P.,  X.  died,  administration  to  his  estate  was  taken 
out  and  bond  given;  A.  settled  his  account  and  was  charged 
with  all  the  personal  estate,  but  by  the  report  of  auditors  X. 
appeared  accountable  for  a  part.  In  suit  brought  upon  such 
administration  bond  by  A.,  iipon  the  event  of  his  death  his 
admiiustrator  should  be  substituted  as  plaintiff  and  not  the 
administrator  de  bonis  noii  of  P.*"  An  action  by  an  adminis- 
trator de  bonis  non  against  a  former  administrator  will  not  lie 
until  an  account  is  filed  and  settled  in  the  proper  court.'^  In 
an  action  by  a  receiver  appointed  to  sue  for  and  collect  the 
choses  in  action  belonging  to  the  estate  against  the  executor, 
upon  a  note  given  by  him  to  the  decedent,  judgment  should  be 
rendered  against  the  executor  inelividually,  and  not  in  his  repre- 
sentative capacity.^  Formerly  an  administrator  de  bonis  non 
could  not  sue  the  former  administrator,  or  his  repi-esentatives, 
for  a  devastavit  or  for  delinquencies  in  office,  nor  could  he  main- 
tain an  action  on  his  bond  for  such  cause  ;  but  if  any  goods  of  the 
estate  remain  in  the  hands  of  such  administrator  in  specie,  he 
might  sue  for  them  eitiier  directly  or  might  sue  w^on  the  bond.** 
This  rule  has  been  changed  by  statute ;  now  the  administrator 
di>  bonis  non  may  call  his  7'emoved  predecessor,  or  his  repre- 
sentative if  he  be  dead,  to  account,  touching  the  entire  admin- 
istration of  the  estate  ;  and  such  administrator  is  liable  to  him 
as  at  common  law  he  was  liable  to  the  creditors  and  dis- 


I 


217  EXECTTOES   AXD  At»>nNISTEATOB3.  \   77 

tributets.^*^  The  heirs  at  law  and  cre<litors  have  also  the  Bamo 
right  upon  a  proper  case  made;'J  but  where  there  were  joint 
administrators  who  gave  a  joint  bond  the  a<lministrator  <le 
Jjonis  non  could  not  maintain  an  action  thereon,  afttr  the 
removal  of  the  administrators,  against  one  and  the  surttics  on 
the  joint  bond,  no  bgal  cause  being  shown  why  the  otlicr 
administrator  was  not  joined.^-  A  bill  for  an  account  may  Ix- 
maintained  between  joint  executors  or  l>etween  an  executor  and 
the  representative  of  a  deceased  executor.^^  "When  a  creditor's 
bill  has  been  filed  against  the  executor,  and  an  interlocutory 
decree  for  an  account  obtained  thereon,  either  a  creditor  or  the 
executor  may  by  petition  obtain  an  injunction  against  creditors 
who  attempt  to  proceed  at  law  against  the  executor. i'  A  bill 
for  an  account  may  be  maintained  against  the  administrator 
and  heirs  in  order  to  prevent  circuity  of  action.'^  Plaintiffs 
will  not  be  allowed  to  impeach  a  single  item  in  the  administra- 
tion of  assets,  it  can  only  be  reached  by  a  gen'  ral  account ;  '^ 
but  for  all  property  of  the  decedent  that  has  come  into  the 
hands  of  the  administrator  he  may  be  compelled  to  account,'' 
and  the  action  may  be  prosecuted  either  by  one  creditor  or  one 
Lgatee  on  behalf  of  himself  and  all  others  who  may  come  in 
and  assist  in  the  suit.^*^  When  a  plea  of,  fully  administered,  is 
found  in  favor  of  an  administrator  (defendant),  and  a  judg- 
ment quando  rendered,  he  is  entitled  to  his  costs. '^  When  the 
fe(/le  legatee  of  a  will  sues  the  executor  for  an  account  and  the 
balance  to  be  thereby  ascertained,  and  the  latter  admits  assets 
in  excess  of  the  debts  and  charges  of  administration,  but  shows 
that  a  creditor's  bill  is  then  pending  against  the  estate,  it  is 
error  to  direct  payment  of  the  legacy  until  the  creditors  have 
been  heard  in  the  proceeding.^"  A  legacy  or  distributive  share 
cannot  be  recovered  without  setting  up  a  legal  representative 
of  the  deceased  on  whose  estate  a  claim  for  the  one  or  tlie 
other  is  made,-i  nor  will  the  action  lie  until  after  demand. -'- 
An  action  at  law  will  not  lie  against  the  a^lministrator  of  an 
executor  for  a  1- gacy  when  the  latter  has  wasted  or  convLTtetl 
the  assets  of  his  testator,  the  remedy  is  in  equity.-^  Legatins 
under  a  will  cannot  maintain  an  action  in  the  nature  of  a  bill 
Parties  -  19 


g  77  "WnO   MAT  SUE   AND  BE  SUED.  218 

of  interpleader  ajjainst  the  administrator  with  the  -will  annexed 
who  has  obtained  license  from  the  proper  court  to  sell  the  real 
premises  for  tlie  payment  of  legacies,  and  against  the  husband 
of  the  testratrix,  who  claims  a  life  estate  in  the  land,  to  deter- 
mine the  rights  of  the  legatees  and  of  the  husband.^^  After 
payment  of  debts  the  administrator  is  trustee  for  the  next  of  kin 
alone,  and  they  may  proceed  against  him  directly  for  what  is 
due  them,"'^^  or  may  sue  upon  his  official  bond.''^^  When  one 
joint  administrator  who  has  received  all  the  assets  of  the  estate 
files  his  account  and  then  dies,  the  next  of  kin  may  proceed 
against  his  representatives  to  recover  their  distributive  share, 
and  tliis  although  there  be  surviving  administrators  of  the 
original  estate.''^'  When  a  bill  is  filed  by  distributees  against 
the  administrator  of  the  estate  to  set  aside  a  transfer  which  he 
has  fraudulently  obtained  from  them  of  their  interest,  and  to 
recover  their  distributive  shares,  the  sureties  on  the  adminis- 
trator's bond  may  be  made  defendants. "^'^  When  by  the  terms 
of  a  will  the  executor  was  directed  to  invest  the  amount 
bequeathed  for  the  benefit  of  the  legatee,  and  he  failed  to  do 
80,  an  action  may  be  maintained  upon  the  undertaking  of  his 
surety.  2« 

1  Succession  of  Farmer,  .32  La.  An.  1040;  Perkins  v.  Ipsann,  11 
P..  I.  270;  and  see  Cole  v.  Wooden,  3  Hur.  (N.  J.)  15  ;  generally  Owen 
V.  Walker,  2G  Ga.  347;  Prentice  v.  Dehon,  10  Allen,  363;  Munroe  v. 
Holmes,  13  Allen,  WX 

2  Hendricks  v.  Thornton,  45  Ala.  309. 

3  Clarke  v.  Colton,  2  Dev.  Bq.  51  ;  generally  Ochiltree  v.  Wright, 
1  Dev.  &  li.  Eq.  3i)!) ;  Fennimore  v.  Fennimore,  3  IST.  J.  Ko.  293 ; 
Orniiston  v.  Olcott,  84  N.  Y.  346. 

4  Fisher  v.  SklUmau,  18  N.  J.  Eq.  229 ;  see  Ormiston  r.  Olcott,  84 
N.  y.  im. 

5  Morse  v.  Oliver,  14  N.  J.  Eq.  259. 

6  Shelby  v.  Dailey,  2  Serg.  &  R.  549. 

7  King  V.  Devoe,  6  Phila.  551 ;  compare  Beall  v.  New  Mexico,  16 
Wall.  5;i5, 

8  Kaster  v.  Pierson,  37  Iowa,  91  ;  generally  Leland  v,  Felton,  1 
Allen,  .>{1  ;  Pusey  v.  Clemson,  9  Serg.  &  R.  208  ;  Gardner  v.  Miller,  19 
Johns.  189  ;  Wood  v.  Tallman,  1  N.  J.  L.  155. 

9  Beall  v.  New  Mexico,  16  Wall.  540  ;  generally  Dreukee  v.  Shar- 
man,  9  Watts,  4,So  ;  State  v.  Johnson,  7  Blackf.  529  ;  State  v.  Johnson, 
8  Ircd.  397;  Brotton  v.  Bateman,  2  Dev.  Eq.  115;  but  see  Tracy  v. 
Card,  2  Ohio  St.  431 ;  compare  Giles  v.  Brown,  60  Ga.  660;  and  see 
Bowers  v.  Grimes,  45  Ga.  617. 


219  EXECUTOBS  A^•D  ADinMSTBATOBS.  ^78 

10  Gilas  V.  Brown,  60  Ga.  661;  compare  Thornton  v.  Park,  fcl  (ia. 
ooO  ;  Bowers  v.  Grimes,  45  G:i.  617  ;  unci  fcenerullv  H«'IhIhv  r.  Cralif  Xt 
Gratt.  717  ;  Farrisv.  Berry.SiTex.  704  ;  Korrlnr.  ltobertHon,4'jMo.r»l. 

11  Bowers  v.  Grimes,  45  Ga.  617. 

12  Farris  v.  Berry,  Si  Tex.  70;i ;  generally  Rushin  v.  Yontnf,  27  Go. 

13  Stiver  v.  Stiver,  8  Ohio,  220. 

14  Simmons  r.  Whittaker,  2  Ired.  Eq.  i:J0  ;  generallv  Wurdsworth 
V.  Davis,  6;^  X.  C.  252  ;  Brown  v.  Ricketts,  ^  Johns.  Vh.  .\>*i. 

15  Smith  V.  Sheppard.  2  Hayw.  1G3 ;  atid  see  Ileedcr  r.  Sp».uki',  -I 
S.  C.  2;)4 ;  but  see  Gordon  v.  Small,  oi  Md.  556 ;  generally  Tutf  r. 
Greenlee,  2  Hawks,  486. 

16  Ward  v.  Turner.  7  Ired.  Eq.  74 ;  generally  Price  r.  Hunt,  11  Ired. 
42 ;  Crombie  v.  Engle,  19  N.  J.  L.  8.3. 

17  Vreeland  v.  Vreeland,  16  X.  J.  Eq.  530  ;  and  see  Fbher  v.  Skill- 
man,  18  N.  J.  Eq.  229. 

18  Brown  v.  Ricketts,  3  Johns.  Ch.  565 ;  generally  see  Johnson  r. 
Hc'na£ru!i,  11  S.  C.  Ill ,  compare  Felly  v.  Bowyer,  7  Bu.sh,  51.1  ;  .Smith 
V.  Williams,  116  Mass.  512. 

19  Lewis  i<.  Johnson,  69  N.  C.  393;  generally  King  v.  Howard,  4 
Dev.  5S1 ;  Mendenhall  v.  Benbow,  84  X.  C.  &16, 

20  Louthall  v.  Shields,  81  X,  C.  28. 

21  Shaw  V.  Shaw,  1  Murph.  XH  ;  Currence  v.  Daniels,  5  W.  Vn.  124  : 
but  see  Hargrove  v.  Thompson,  31  Miss.  215. 

22  Miles  v.  Boyden,  3  Pick.  216 ;  and  generally  see  Amos  v.  f 'larkr. 
106  Mass.  574;  State  v.  Wilson,  38  Ind.  3:39 ;  compare  Bauglmiun  r. 
Kunkle,  8  Watts,  48.3. 

23  Coates  v.  Mackie,  43  Md.  128  ;  generally  Rushin  r.  Young,  27  (So. 
325  ;  Rogers  v.  Rushin,  :i0  Ga.  945. 

24  Sprague  r.  West,  127  Mass.  4T2. 

25  Shaver  7-.  Shaver,  1  X.  J.  Eq.  439 ;  generally  Kamhier  r.  Hope, 
9  S.  C.  2.54  ;  Walker  v.  Walker,  47  Ga.  :«S. 

26  Kaminer  r.  Hope,  9  S.  C.  254  ;  United  States  v.  KIur.  1  Mc.Ar. 
499  ;  Baughman  v.  Kunkle,  8  Watts,  4-84  ;  same  connection  Beavers  r. 
Brewster,  62  Ga.  575  ;  Towner  v.  Tooley,  :te  Barb.  5.(9. 

27  Baughmau  v.  Kunkle,  8  Watts,  484  ;  compare  Deluirt  v.  D-hart. 
3  X.  J.  Eq.  472. 

28  Gerald  v.  Miller,  21  Ala.  433. 

29  United  States  v.  Parker,  2  McAr.  444. 

^  78.  Suits  by  or  against  heirs,  devisees,  legatees,  etc.  — 
The  heirs  of  a  p:rsou  dying  intestate  caunot  maintain  an  action 
upon  a  debt  due  the  decedent ;  ^  if  there  are  debts  duo  from  the 
estate,'^  an  exception  exists  when  there  is  colhision.  in.>;olvcnoy, 
unwiUingness  to  collect  the  assets  on  the  part  of  the  legal  rep- 
resentative, or  some  other  special  facts  warrant  it ;'  so  a\^o  the 
sole  devisee  of  the  decedent  cannot  maintain  an  action  for  a 
tort  or  conversion  of  the  property  of  the  decedent  in  his  life- 


^78  yrao  may  sue  xsd  be  sued.  220 

time,  the  action  must  be  brought  by  the  legal  representative.^ 
Whi  n  a  testator  provided  by  his  will  that  his  estate  should  be 
administered  outside  of  the  probate  court,  and  the  executor 
had  turned  the  property  over  to  the  devisee,  a  creditor  was 
allowed  to  proceed  directly  against  the  devisee,  to  collect  his 
claim, ^  The  widow,  or  in  case  of  her  death  the  children,  may 
rt-eover  for  the  homicide  of  the  husband,  whether  the  act  be 
committed  by  a  natural  or  artificial  person,  or  is  the  result  of 
iatention  or  criminal  negligence.**  When  a  testamentary  trust 
is  limitfd  to  a  pui-pose  inconsistent  with  the  laws  of  the  State, 
the  heir  has  a  right  in  equity  to  contest  the  execution  of  the 
trust.'  When  the  administrator  has  failed  to  distribute  funds 
in  his  hands  according  to  law,  and  has  been  removed,  there 
being  no  debts,  persons  entitled  to  distribution  may  bring  suit 
on  the  administrator's  bond,  without  the  appointment  of  an 
administrator  de  bonis  non,  and  before  final  settlement.^ 
Aft.-r  payment  of  debts  the  administrator  is  trustee  for  the 
next  of  kin  alone,  and  they  may  proceed  against  him  directly 
for  what  is  due  them."  In  a  suit  in  equity  brought  by  one  dis- 
tributee of  the  estate  of  an  intestate,  against  the  administrator, 
to  set  aside  a  settlement  on  the  ground  of  fraud,  all  the  dis- 
tributees must  be  made  parties  either  as  plaintiff  or  defendant, 
in  order  to  prevent  a  multiplicity  of  suits.'"  As  a  legatee  of 
l)ersonal  propc-rty  cannot  maintain  aii  action  to  recover  his 
legacy  before  the  will  has  been  admitted  to  probate, ^^  so  an 
action  cannot  be  maintained  to  recover  it  until  it  is  payable, 
but  in  a  proper  case  a  suit  may  be  maintained  for  its  preserva- 
tion before  it  is  payable.'^  When  several  legatees  join  in  a 
power  of  attorney  authorizing  one  to  collect  their  several 
legacies,  each  legatee  may  maintain  a  separate  action  to  recover 
the  amount  so  collected. '^  An  executor  suing  for  legacies 
charged  upon  lands,  after  the  estate  has  been  settled,  and 
having  no  interest  in  the  legacies,  cannot  maintain  the  suit 
without  joining  the  legatees  as  complainants  with  him.i* 
When  legacies  in  favor  of  several  persons  are  charged  upon 
the  same  lands,  all  may  join  in  a  suit  to  enforce  payment 
against  the  devisee  in  trust  and  purchasers  from  him  with 


221  EXECrXOBS  A^D  ADiri>-ISTUAToK.S.  ^  7g 

notice. i3  if  the  complainant  in  a  suit  in  equity  brought  to  set 
aside  a  conveyance  of  lands  dieb  leaving  a  will  deviaing  tlio 
land  in  controversy,  and  the  devisee  seeks  to  revive  the  original 
suit,  he  must  make  the  heirs  at  law  parties  defendant. ^^  When 
it  is  necessary  to  resort  to  lands  devised  to  the  wife  U)T  tho 
payment  of  a  deceased  husband's  debts,  the  wife  is  remitted  to 
her  right  of  dower."  "NVlicn  the  rights  cf  creditoia  are  not 
interfered  with,  the  widow  and  heirs  may  join  in  an  ex  parte 
petition  therefor  ;is  but  if  the  estate  be  insolvent  the  creditors 
should  be  made  parties  defendant. i**  The  rents  anJ  promts  of 
the  real  estate  of  a  decedent  until  it  is  sold  for  payment  of 
debts  belong  to  the  heir,  and  if  collected  by  the  administrator 
he  may  bs  sued  therefor  in  an  action  at  law; 2"  such  action 
may  be  brought  either  by  one  or  all  of  the  heirs,  but  an  intcr- 
mediats  number  cannot  maintain  the  action -j'^^^  so  if  the  land 
be  devised  to  a  person  he  may  maintain  an  action  for  tl.e  \iso 
and  occupation,  although  he  be  but  a  tnistce.22  TVhere  1)reacU 
of  a  covenant  to  pay  a  mortgage  i:pon  lands  (a  half  interest  in 
tue  premises  being  retained  by  the  grantor)  occurs  after  tho 
death  of  the  grantor,  the  heirs  arc  the  proper  parties  to  main- 
tain an  action  to  recover  for  breacb  of  the  covenant  i*'^  j^o  also 
heirs  arej'ointly  chargeable  as  assigns  on  a  covenant  of  their 
ancestor  which  runs  with  the  laud  that  descends  to  them.-* 
Ileirs  must  join  in  an  action  for  the  destruction  of  tlieir  title 
deeds  to  land. 25  "When  the  plaintiff  iu  a  suit  for  specific  pcr^ 
formance  of  a  contract  to  convey  Unds  dies  pending  the  action, 
it  should  be  revived  in  tho  name  of  his  heirs. ^s  Purchase 
money  paid  on  an  agreement  for  sale  of  land  is  in  cqr.i'y  con* 
sidercd  as  land,  if  the  contract  be  vacated  after  t!:e  death  of  the 
verdce,  ii  goes  to  tlio  heir,  and  he  is  tho  proper  p.rson  to 
recover  it. 2^  TThcn  suit  is  brought  against  the  estate  to  en- 
force tho  execution  of  a  contract  to  convey  lands  made  by  a 
decedent,  the  administrator  may  properly  be  joined  with  tho 
heirs  as  defendant."^  Upon  tho  death  of  an  intestate  bis  bntla 
immediate  ly  descend  to  his  hcivs  and  th-^y  are  t!ic  proper  per- 
sons to  maintain  an  action  to  set  aside  a  tax  sr-le  thereof,  and  to 
restrain  tho  issuance  of  a  tax  deed. '"J    A  deviseo  may  bring 


g  78  "WnO  MAY  SUE  AND  BE  SUED.  222 

ejectment  upon  a  will  before  probate  or  after  its  rejection,  at 
the  instance  of  the  executor,  and  establish  the  will  on  tlic  trial, 
or  in  a  proper  case  may  prove  it  in  a  court  of  chancery.^" 
"When  there  are  no  creditors  to  be  affected,  no  debts  outstand- 
ing against  the  estate,  and  no  existing  equity  in  favor  of  the 
administrator,  the  heirs  have  the  right  of  possession  and  may 
maintain  ejectment  in  their  own  name.^^  It  is  not  the  duty  of 
the  administrator  to  take  possession  of  the  land  of  the  decedent 
unless  the  rents  and  profits  are  needed  in  the  settlement  of  the 
estate,  and  until  he  does  take  possession  the  heir  may  maintain 
ejectment  although  the  estate  has  not  been  settled  ;*^'-*  but  a 
court  of  equity  will  not  enjoin  an  administrator  from  suing  to 
recover  a  tract  of  land  for  the  heirs  when  one  of  them  is  insane 
and  the  other  is  a,  feme  covei't,  abandoned  by  her  husband  who 
would  not  sue,  and  she  by  reason  of  covertiire  could  not  main- 
tain the  action. ^^  The  death  of  the  defendant  pending  a  real 
action  (ejectment)  abates  it,  but  a  new  cause  of  action  arises 
against  the  heir.^* 

1  Leamon  v.  McCubbin,  82  111,  263  ;  generally  WrJpoIe  v.  Eishop, 
31  Ind.  1G7. 

2  AValpolo  V.  Bishop,  31  Ind.  157 ;  and  see  Hill  v.  Boyland,  40  Miss. 
620  ;  JJiichcll  v.  Dickson,  53  Ind.  110. 

3  Worthy  v.  Johnson,  8  Ga.  230 ;  generallj'  Dennis  v.  Smith,  61  Ga. 
26'J  ;  Aucli;;g  v.  Davis,  -.is  Miss.  5i/0  ;  Hill  v.  Hoylui^d,  40  Miss.  (S2J  ;  Hiil 
V.  lioyland,  -JO  Miss.  620 ;  Kavenscri;lt  ?•.  Pratt,  22  Kan.  21  ;  compare 
KitchiMS  V.  llarrall,  .>»  Miss.  475;  Gates  v.  V»'alker,  8  Da.  An.  277; 
Kamucl  v.  Marshal,  3  Leigh,  573. 

4  :McLean  Co.  Coal  Co.  v.  Long,  91  111.  617. 

5  Reynolds  v.  McFadden,  36  Tex.  120;  and  see  Hoye  v.  Price,  ::0 
La.  An.  'J3;  generally  Sampson  v.  Sampson,  63  Me.  330. 

6  Cottingham  i\  Weekes,  56  Ga.  201. 

7  Do  Camp  v.  Dobbin,  31  N.  J.  Eq.  688. 

8  State  r.  Thornton,  56  Mo.  325;  same  connection  Moore  r.  >ror>rt-, 
22  La.  An.  226 ;  Baines  v.  Barnes,  64  Ahi.  ;K0. 

0  Shaver  i'.  Shaver,  1  N.  J.  Eq.  437;  and  see  Jordan  v.  Donahue, 
12  11.  I.  190. 

10  Dillon  1).  Bates,  30  Mo.  208. 

11  Shepherd  v.  Nabors,  6  Ala.  636;  generally  Dillon  v.  Bates,  30 
Mo.  302. 

12  Howhmd  v.  Uowland,  11  AV.  Va.  270 ;  generally  Swope  v.  Cham- 
bers, 2  Gratt.  32:; ;  I>o\vers  v.  Powers,  23  V/Js.  630. 

13  Power  V.  Hathaway,  43  Barb.  218. 

11  Coolr.  Iliggins,  25  X.  J.  Eq.  120;  and  .see  Fish  v.  Howland,  1 
Paige,  2«J. 


223  EXECITTOES  A>T)  ADMINISTRATOBS.  \   78 

Ij  JacUl  ?'.  Busiinell,  7  Conn.  20'J  :  ffeiK^rallv  Powers  v.  I'l.wr^,  zs 
^Vi^5.  GoO  ;  Shelfloa  v.  Armsteud,  7  Gratt.  283  ;  Hwasey  v.  1>1:.1' ,  7  Pick. 
2a7  ;  Parks  v.  Knowltoii,  14  Pick.  433. 

16  Lyons  v.  Van  Riper,  20  X.  I.  Eq.  3C7. 

17  Gully  V.  Holloway,  63  X.  C.  SG  ;  and  see  .Slnioutr)n  r.  Houston, 78 
X.  C.  40J  ;  compare  Zaegel  v.  Knster,  51  Wis.  38. 

IS  Ex  parte  Avery,  64  X.  C.  114  ;  generally  Raiusotir  r.  IlaniHour. 
63  X.  C.  2ai. 

19  Ex  parte  Moore,  6-t  X.  C.  90  ;  and  see  Lowery  v.  Lowerv,  6|  X.  V. 
110  ;  Ex  parte  Avery,  64  X.  C.  114. 

20  Kimball  r.  Sumner,  62  Me.  310;  and  see  Palmer  v.  PiJmer,  13 
Gray,  32-S  ;  Towle  v.  Swasey,  10(i  Ma.ss.  107  ;  Almy  v.  Carpo.  100  Mom. 
220 ;  generally  Tlndai  v.  Drake,  51  Ala.  o7.i  ;  Baker  r.  Hi'skell,  4'i 
X'.  H.  427 ;  compare  Calhoun  v.  Fletcher,  63  Ala.  S'sO ;  FJlbcy  ». 
Carrier,  45  Wis.  46^. 

21  Kimball  v.  Sumner,  62  Me.  310  ;  see  Clark  r.  Fox,  0  Dana,  IfA. 

22  Chapin  v.  Foss,  75  111.  281. 

23  AA-ers  v.  Dixon,  78  X.  Y.  324  ;  and  generally  CrIsHeld  r.  Storr,  W 
Mel.  142. 

24  Morse  v.  Aldrich,  1  Met.  545  ;  generally  Crisdeld  v.  Storr, ;«  Md. 
151  ;  Gilchrist  v.  Filyan,  2  Fla.  Uh. 

25  Daniels  v.  Daniels,  7  Mass.  l-SO. 

26  Lanning  v.  Cole,  6  X.  J.  Eq.  105. 

27  Young  V.  Young,  81  X.  C.  ^J>. 

2h  Judd  V.  Mosely,  30  Iowa,  427  ;  and  compare  generally  Ilerulerson 
V.  Peck,  3  Humph.  247 ;  Tinkler  v.  Swayhie,  71  Ind.  5«>;{. 

29  Marsh  v.  Board  of  Supervisors,  3S  Wis.  2.52;  generally  Calhoun 
■J'.  Fletcher,  63  Ala.  5S0  ;  Gossage  v.  Cro\vn  Pt.  M.  Co.  14  Xev.  158. 

SO    Eedmond  r.  Collins,  4  Dev.  4-lG. 

31  Gossage  v.  Crown  Pt.  G.  M.  Co.  14  Xev.  154  ;  generally  Sherrid 
V.  Southwick,  43  Mich.  516;  Chambers  v.  Wright,  40  Mo.  482;  Mc- 
Cracken  v.  McCracken,  67  2>Io.  SOI. 

32  Filbey  v.  Carrier,  45  Wis.  471  ;  and  see  Marsh  r.  Suporvisors.  3S 
Wis.  252;  Calhoun  v.  Fletcher,  63  Ala.  570;  compare  In  re  Wood- 
worth,  31  Cal.  604  ;  Soto  v.  Krodar,  10  Cal.  'S\ ;  Sleeks  v.  Kirby.  47  ("al. 
169 ;  Chapman  v.  Hollister,  42  Cal.  463 ;  generally  Cunningham  v. 
Ashley,  45  Cal.  491. 

33  Flemming  v.  Collins,  27  Ga.  495. 
2A    Hoffman  v  St.  Clair  40  Mich.  351. 


g  73  -svnc'  HAY  SUE  and  be  sued.  224 


CHAPTEr.  XI. 

LANDLORD  AND  TENANT,  JOINT  TENANTS,  AND  TENANTS  IN  COMZMON. 

J  73.  Landlord  and  tenant,  suits  bj-. 

g  £0.  Landlord  and  tenant,  suits  afe'uinst. 

J  SI.  Joi::t  tenants,  tenants  in  common,  suits  rrh;ti"{?  Lo  personaltj-. 

I  82.  .Same  continued,  suits  relating  to  real  property. 

g  79.  Landlord  and  tenant,  suit3  by.  —  A  person  iu  pos- 
sission  of  laud,  whatever  mav  bo  his  title,  or  though  he  be 
without  title,  may  maintain  an  action  for  an  injury  to  his  pos- 
session against  a  wrong-doer  ^  who  is  not  the  legal  owner.^ 
The  lessee  of  laud  in  possession  under  a  contract  to  give  a  part 
of  the  cr9p  for  rent  may  maintain  an  action  for  trespasses 
upon  his  l:md^  and  crop  without  joining  the  landlord  ;  ■*  and  as 
between  the  landlord  and  tenant,  the  latter  is  entitled  to  the 
possession  until  a  division  is  made,  and  may  maintain  the 
action  even  against  the  landlord,^  or  a  succeeding  tenant.'' 
"When  a  tenant  abandoned  the  leased  promises,  making  default 
in  payment  of  rent,  and  leaving  behind  an  unharvestcd  crop, 
before  the  expiration  of  the  lien  authorized  by  law,  and  after 
the  landlord  had  harvested  the  crop  it  v.as  seized  by  an  attach- 
ing creditor  of  the  tenant,  held  the  landlord  might  claim  it  by 
interpleader.^  "^N'hen  a  tenant  for  years  lias  erected  buildings 
upon  the  leased  premises,  he  may  maintain  an  action  against 
an  adjoining  owner  who  negligently  removes  the  soil  of  his 
own  lot,  whereby  the  building  was  injured  ;^  but  whenever  the 
injury  to  leased  premises  is  of  a  permanent  character,  the  lessor 
or  reversioner  may  maintain  an  action  for  the  injury.'-'  "When 
in  a  suit  by  the  lessor  against  the  lessee  to  recover  possession 
of  the  premises  the  former  dies  pending  the  action,  it  does  not 
abate  ;  but  his  heir  may  prosecute  it  to  judgment.i*^  One  own- 
ing wild  lands  which  he  holds  by  deed,  from  one  seized  by 
deed,  is  in  such  possession  as  to  enable  him  to  maintain  a  suit 
in  equity  to  remove  a  cloud  from  the  title."    Such  action  will 


225  LANDLORD   AND   TENANT.  ^    79 

also  bo  entertained  in  equity  if  brought  by  a  remainder  man  who 
sues  by  the  tenant  of  tho  particular  estate  as  next  friend,  wlicn 
tliG  allegations  of  tlic  bill  arc  of  such  a  nature  as  to  preclude 
the  latter  from  objecting  to  the  proceeding.'2  A  landlord  can- 
not maintain  a  bill  in  equity  to  suppress  a  nuisance  caused  to 
Lii  property  before  he  demised  it,  and  continued  afterward, 
without  joining  his  tenant  as  a  co-plaintifif.^^  VHicn  A.  and  D. 
executed  a  joint  lease  to  X.  of  certain  premises,  and  it  was 
specified  that  one  half  the  rent  should  be  paid  to  A.,  and  the 
other  half  t)  B.,  upon  breach  of  the  terms  of  the  lease  by  X. 
held  that  a  joint  action  by  A.  and  B.  might  be  maintained  for 
restitution  of  the  premises,  and  damages  for  their  detention.'* 
Vriien  a  lease  is  made  for  three  years  at  an  annual  rental  of 
llvo  hundred  djilars,  but  conditioned  to  be  paid  in  two  instal- 
ments of  seven  hundred  and  fiftj' dollars  each,  at  thctndtf 
the  firi:;t  and  second  yeara  the  lessor  cannot  maintain  a  statu- 
tory attachment  for  five  hundred  dollars  and  a  st pirate 
action  at  law  for  the  balance  of  the  instalment,  since  this 
would  bo  splitting  an  entire  indivisible  cause  of  action.'^  An 
action  for  the  rent  reserved  in  a  Lase  may  be  maintained  by 
the  lessor,  although  the  lessee  refused  to  enter,  and  never  Lad 
been  in  possession  of  the  demised  premises.  "^  The  as-signcc  of 
a  note  given  for  rent  of  l.md  may  maintain  an  action  for 
money  had  and  received,  against  a  purchaser  of  the  tenant's 
crop  who  bought  with  notice  of  the  lien,  and  has  sold  the  crop, 
and  received  the  proceeds  of  the  sale;''  so  when  property  is 
delivered  to  a  landlord  as  security  for  payment  of  rent  he  is 
entitled  to  the  possession  and  may  maintain  an  action  for  a  dis- 
turbance thereof.!**  Upon  the  death  of  the  lessor  the  rent 
already  accrued  may  be  recovered  by  the  administrator,  that 
subseejuently  accruing  by  the  heir, '**  and  if  contiicting  claims 
are  made  thereto  the  tenant  may  have  them  determined  by 
interpleader.^" 

1  E.  &  P.  Manuf.  Co.  r.  Gibson,  62  Ala.  -^  ;  Cronu^lln  «•.  C'o.\o, .« 
Alu.  32i;  Comes  r.  Harris,  I  X.  Y.  226;  Inskeep  c  Slii.-lds,  h*  >.  J. 
L.  :i4o;  gc-iierallv  Austin  r.  Iliulsoti  11.  Ry.  Co.  2o  X.  V.  :Si7  ;  j>t:irk  r. 
:iill-r,  -.i  Mo.  470 ;  :McHeur:.-  r.  Marr,  3J  :Ma.  0:0. 

2  iMskeen  v.  .Shields,  IJ  X.  J.  L.  Mo. 


g  80  "WHO  MAY   SUE  AXD  BE  SUED.  226 

:j    Wontworth  i-.  Railroad,  55  N.  H.  543, 

4  Larlcin  v.  Taylor,  5  Kan.  441 ;  compare  Monlton  v.  Bobinson,  27 
X.  ir.  ool  :  and  see  Peebles  v.  Lassiter,  11  Ired.  74  ;  Sandeliu  v.  Shaw, 
t)  Jones,  228. 

5  Front  V.  Hardin,  56  Ind.  166;  bnt  see  Wells  v.  HoUeubeck,  37 
Mi;'h.  5. 5. 

G    Morrison  v.  Mitchell,  4  Houst.  ;i25, 

7  Sanders  i'.  Ohlhausen,  51  Mo.  164. 

8  Ans-in  v.  Hudson  R.  Ry.  Co.  25  X.  Y.  337;  generally  Stark  v. 
Miller,  3  Mo.  470 ;  compare  also  McHenry  i\  Marr,  39  Md.  510. 

9  :Moses  ?'.  Old  Dominion  Q.  &  X.  AV.  Co.  75  Va.  96  ;  Fitch  v.  Gosser, 
54  Mo.  2(1  i ;  and  see  Shaw  v.  Cumniinsky,  7  Pick.  76  ;  compare  Ganter 
7'.  Atkinson,  Ko  Wis.  50  ;  generally  Beers  v.  Beers,  21  Mich.  467  ;  Leer. 
Payne,  4  Mich.  115. 

10  Sacket  v.  Wheaton,  17  Pick.  104  ;  generally  Coburn  v.  Palmer,  8 
Cnsh.  126. 

11  Thompson  v.  Woolf,  8  Oreg.  455. 

12  Bnrkey  r.  .Self,  4  Sneed,  122  ;  and  see  Dodd  v.  Benthal,  4  Keisk. 
602. 

13  Ingrahani  ?•.  Bunnell,  5  Met.  123. 

14  Treat  v.  Liddell,  10  Cal.  302;  see  also  Ferguson  v.  PTam,  27  Mo. 
250. 

15  Campbell  v.  Hatchett,  55  Ala.  552. 

16  Birckhead  v.  Cummins,  33  X.  J.  L.  44. 

17  Westmoreland  v.  Foster,  60  Ala.  45-1;  generally  Butt  v.  Ellett, 
19  Wall.  547  ;  Lavender  v.  Hall,  60  Ala.  216. 

18  Chamblee  v.  McKenzie,  31  Ark.  155. 

19  Cole?'.  Patterson,25  Wend.  458  ;  CBannonn  Roberts, 2  Dana, 54  ; 
King  >\  Anderson.  20  ind.  'iSd;  generally  Campan  ?'.  Shaw,  15  Mich. 
260  ;  Marshall  v.  Moseley,  21  X'^.  Y.  2«1. 

20  Badeau  v.  Tylee,  1  Sand.  Ch.  271  ;  see  generally  Seaman  r. 
Wright,  12  Abb.  Pr.  :i05. 

I  80.  Landlord  and  tenant,  suits  against.  —  When  a  law- 
ful act  is  done  npou  laud  by  tlie  owner,  no  action  will  lie  there- 
for in  favor  of  an  adjoining  owner,  although  the  act  be 
malicious.^  One  who  negligently  constructs  his  premises,  or 
■when  they  become  defective,  negligently  permits  them  to 
remain  so,  is  liable  to  his  tenant,  free  from  fault,  who  is 
injured  thereby ;  2  even  if  the  duty  neglected  is  one  imposed  by 
statute;^  if  a  third  pei'son  sustain  injury  from  the  defect  or 
want  of  repair  of  premises  in  possession  of  the  tenant,  the  pre- 
sumption is  that  the  tenant  is  liable.*  So  for  the  negligent  use 
of  premises  by  the  tenant ;  &  but  if  the  landlord  holds  posses- 
sion for  his  own  use  of  a  part  of  a  building,  the  rule  does  not 
apply,  and  the  tenant  may  recover  for  an  injury  resulting  to 


227  LA>-DLOBD   AND   TENANT.  g   80 

him  from  the  negligent  use  of  the  premises  by  the  fonner,' 
And  so  the  landlord  is  liable  to  a  third  person  for  an  injnry 
resulting  from  the  unsafe  condition  of  the  premises  in  his 
possession;'  but  a  distinction  exists  between  an  express  or 
implied  invitation  to  come  upon  the  premises,  and  a  bare  per- 
mission or  license  to  use  them.^  The  action  of  ejectment  is  a 
fiction  founded  upon  the  j)rinciple  that  the  tenant  in  possession 
is  a  wrong-doer  as  against  the  plaintiff,  and  unless  he  is  so  at  the 
time  the  action  is  brought  the  plaintiff  cannot  recover."  If  the 
lands  are  in  the  possession  of  a  tenant  he  is  the  proper  party 
defendant ;  ^"  the  landlord  may,  however,  in  most  cases,  when 
his  title  is  drawn  in  issue,  be  permitted  to  defend  in  the  name 
of  the  tenant ;  ^^  or  he  may  be  substituted  as  party  defendant,  ■'■' 
or  both  may  be  made  parties. ^^  A  plaintiff  may  declare  upon 
the  same  title  against  as  many  persons  as  are  in  possession  of 
the  premises  claimed,  but  separate  defense  may  be  made.**  The 
recovery  may  be  for  any  amount  less  than  the  whole  amount 
claimed,'^  and  cannot  be  defeated  either  by  the  fact  that 
plaintiff  took  possession  after  suit  brought, "^  or  defendant 
became  the  owner  of  the  premises.^'  When  lands  are  occupied 
by  the  permission  of  plaintiff,  without  an  express  contract, 
the  law  will  imply  a  promise  to  make  a  reasonable  com- 
pensation for  the  use  and  occupation.^**  Under  the  provisions 
of  the  Code,  the  lessee  and  one  who  guarantees  payment 
of  the  rent  may  be  jointly  sued  in  the  same  action,'"  and 
one  who  purchases  land  at  execution  sale  may  become  party  to 
an  action,  for  the  recovery  of  rent  accruing  after  the  purchase  by 
motion  made  upon  proper  notice  to  the  tenant  occupying  the 
land.^"  When  several  tenants  are  in  the  common  possession 
of  stock,  they  may  be  jointly  sued  for  trespasses  committed  by 
it,  although  the  several  animals  were  owned  by  them  sepa- 
rately, ^i 

1  Phelps  v.  Nowlen,?2  N.  Y.  oQ  ;  compare  Howland  r.  Vincent, 
10  Met.  372  ;  and  see  Kolm  ?•.  Lovett,  44  Ua  .-256  :  generally  WalktT  r. 
Cronin,  107  Mass.  oW ;  Green  leaf  r'.  Francis,  18  Pick.  121:  C'hatflelrt 
V.  Wilson,  28  Vt.  5;i;  Frazier  v.  Brown,  12  OhioSt.  2'J8;  Wheutley  v. 
Baugh,25Pa.  St.  5:». 

2  Scott  V.  Simons, 51  X.  H.  429 ;  generally  Eeeves  v.  Larkin.  i;»  Mo. 
192  ;  Gddley  v.  Hagerty,  20  Pa.  St.  397  ;  Willy  r.  Mulledy,7S  N.  'i  .  313. 


?  81  WHO   MAY  SUE   AND   BE   SUED.  228 

•A    Willy  J'.  Mulknly,  78  X.  Y.  318  ;  McAlpiii  v.  Powell,  70  X.  Y.  126. 
•1    Chicago  V.  O'Brennati,  a:>  111.  165  ;  Raster  v.  Newkouse,4  Smith, 

5  Killion  1'.  Power,  .51  Pa.  St.  -131 ;  Simonton  v.  Loring,  68  Me.  164. 

6  Priest  v.  Xichols,  116  Mass.  407 ;  Totten  v.  Phipps,  52  X^.  V.  •.'M. 

7  Elliott  V.  Frav,  10  Allen,  378  ;  and  see  Ja.ffcr  v.  Adams,  t23  :Mass. 
27;  Kenerallv  Saleshnrv  r.  Ilerchcnroder,  106  Mass.  45);  compare 
Kolin  r.  Lovett,  44  Ga.  2.tG  ;  Rowland  r.  Vincent,  10  Met.  ;-;72. 

8  Beck  r.  Carter,  68  X.  Y.  292;  generally  Rowland  v.  Vincent,  10 
Met.  372  ;  Kohn  v.  l.ovett,  44  Ga.  2r>(i ;  Sweeny  v.  Old  Colony  <fe  X.  Ky. 
Co.  10  Allen,  373;  Wendell  v.  Baxter,  12  C^ray,  4!'6;  Carleton  v.  Frai;- 
conia  V.  &  S.  Co.  DO  Mass.  217;  Petei-sbnrg  v.  Applegarth,  23  Gratt. 
3:«t ;  Franklin  Wharf  v.  Portland,  67  Me.  53. 

9  Lannev  r.  Wilson,  30  Md.  546;  generally  see  Abram  v.  vriel,  6 
Ohio.  11m;  Ludlow  1-.  Barr,  3  Ohio,  407  ;  Hawkins  v.  Keichert.  2S  Cal. 
o^»  ;  Lyle  v.  Rollins,  25  Cal.  430 ;  Mahoney  v.  Middleton,  41  Cal.  53. 

10  Hawkins  v.  Reichert,  28  Cal.  5:^4. 

11  Dimick  v.  Deringer,  32  Cal.  491 ;  compare  Jackson  v.  Allen,  30 
Ark.  Ill  ;  State  v.  Orwig,  M  Iowa,  115;  Button  v.  Warschauer,  21  Cal. 
61!). 

12  State  V.  Orwig,  31  Iowa,  115;  Button  v.  Warschauer,  21  Cal.  619  ; 
compare  Dimick  v.  Deringer,  32  Cal.  491 ;  and  see  Fitch  v.  Cornell,  1 
Sawy.  158. 

13  Jackson  ?'.  Allen,  30  Ark.  119;  generally  Rollins  v.  Rollins,  76 
X.  C.  865. 

14  Love  V.  Wilbourne,  5  Ired.  348  ;  generally  Ritchie  v.  Borland,  6 
Cal.  37  ;  compare  Lewis  v.  Marshall,  5  Peters,  474. 

15  Treon  v.  Emerick,  6  Ohio,  399. 

16  McChesney  ?'.  Wainwright,  5  Ohio,  452. 

17  Dawson  t\  Porter,  2  Ohio,  305. 

18  Cobb  V.  Kidd,  12  The  Reporter,  770 ;  see  Carpenter  ■)•.  I'nited 
States,  17  Wall.  493  ;  Dell  r.  Gardner,  25  Ark.  !:«. 

19  Decker  r.  CSaylor,  8  Hun,  110;  see  generally  Doty  v.  CJillett,  43 
Mich.  205. 

20  Cooper  v.  Baker,  2  Bush,  244. 

21  Jack  r.  Hudnall,  25  Ohio  St.  256.    See  Torts,  Joixdkk. 

^81.  Joint  tenants  —  Tenants  in  common  —  Suits  relating 
to  personalty. — Asa  rule  in  actions  in  form  ex  delicto,  and 
whicli  are  not  for  the  breach  of  a  contract,  should  be  enforced  by- 
tenants  in  common,  jointly,^  but  the  objection  can  only  be  taken 
by  plea  in  abatement,  or  by  way  of  apportionment  of  the  dam- 
ages at  the  trial.-  The  same  principle  is  applicable  when  the 
tort  is  waived,  and  suit  is  brought  in  assumpsit ;  the  tenants 
must  sue  jointly .^  The  tort,  however,  cannot  be  waived,  and 
assumpsit  be  maintained  against  the  original  tortfeasor,*  but  if 
he  dispose  of  the  goods  and  receive  the  proceeds  it  will  lie ;  ^  so 


229  JOEN'T  TENANTS,   TENANTS  IX   COitMON.  \   81 

if  lie  die  assumpsit  will  lie  against  his  executor.^  Joint  ownen* 
of  a  vessel  should  maintain  actions  for  freight  in  their  jr^int 
nameS;  one  part  ov^•nor  cannot  sue  therefor  alone,  even  though 
he  he  master  ;  *^  and  so  in  case  of  loss,  an  action  for  the  insur- 
ance sliould  be  maintained  in  their  joint  names  ;"  hut  where  B. 
famishes  a  boat  to  A,,  under  an  agreement  that  A.  shall  sail  it, 
and  divide  the  gross  earnings,  and  freight  is  earned,  an  action 
for  its  recovery  may  be  maintained  in  the  namtsof  A.  and  B.; 
and  C,  although  a  part  owner  in  the  boat,  need  not  l>e  joined,  he 
not  being  a  party  to  the  contract  of  affreightment,  or  to  tliat 
between  the  plaintiffs.^"  When  one  part  owner  of  a  chattel  is 
entitled  to  the  exclusive  possession,  he  may  maintain  t.-over 
against  a  co-tenant  for  depriving  him  of  it.^^  So  if  one  or 
more  joint  owners  of  a  vessel  wrongfully  seize  it,  and  thereby 
inten-uj)t  a  voyage  for  which  she  is  then  under  cliarter,  the 
part  owners  injured  thereby  may  maintain  an  action  again&t  the 
former  to  recover  the  damages  sustained.^2  jf  qu^;  tenant  in 
common  of  a  chattel  by  a  sale  converts  it  wholly  to  his  own 
use,  an  action  of  trover  may  be  maintained  against  him  by  his 
co-tenant ;  ^-^  so  if  he  destroys  or  consumes  it,^*  or  places  it  in 
such  position  that  its  recovery  is  impracticable.-^  When  the 
goods  are  separable  in  respect  to  quantity  and  quality  by  weight 
or  measure,  each  tenant  may  demand  of  his  co-tenant,  who  has 
the  whole  property,  his  share,  and  upon  refusal  to  dc  liver,  or 
for  a  conversion  thereof,  may  maintain  an  action  in  his  own 
name  alone. ^^  The  general  rule,  however,  is  that  one  tenant 
in  common  cannot  sue  a  co-tenant  in  trover ; ''  and  as  neither 
has  the  right  to  the  exclusive  possession  of  the  chattel,  detinue 
vrill  not  lie  by  one  tenant  against  the  other.^**  So  one  tenant 
cannot  maintain  traspass,  trover,  or  replevin  against  an  oflieer 
who  attaches  his  co-tenant's  interest  in  the  chattel ;'"  but  if  the 
officer  sell  the  whole  interest,  he  may  be  treated  as  a  trespasser 
ah  iyiitio.^^  An  action  at  law  maybe  maintained  by  one  part}- 
to  a  contract  for  the  construction  of  a  vessel,  against  amnhcr 
party  to  it  for  a  breach  thereof,  even  though  they  are  to  be 
tenants  in  common  of  the  chattel  when  completed.-^  As  a  rule 
part  owners  of  a  vessel  are  prima  facia  liable  for  materials 
Parties  —  20 


g   81  WHO  MAY  SUE   AND  BE   SUED.  230 

used  either  in  her  construction  '^'^  or  repair.-^  When  an  agree- 
ment is  entered  into  between  the  owners  of  a  vessel,  by  which  one 
part  owner  for  a  certain  sum  to  be  paid  him  agrees  to  procure 
insurance  upon  the  joint  interests  of  the  other  part  owners, 
upon  faihu-e  to  perform  the  agreement  by  the  latter  an  action 
lies  in  favor  of  each  part  owner  severally.^*  One  part  owner 
may  maintain  assumpsit  against  his  co-owner  to  recover  a  con- 
tribution for  services  rendered  by  the  former,  in  and  about  the 
common  business  in  pursuance  of  a  contract  between  them  for 
such  services.2»  When  defendant  is  master  and  part  owner  of 
a  vessel,  ai:d  plaintiff  is  part  owner  of  the  cargo,  he  may  main- 
tain an  action  for  his  share  of  the  proceeds  of  the  sales  of  the 
cargo  received  by  the  former. ^'i  In  an  action  of  detinue 
plaintiff  must  show  an  exclusive  title  to  the  chattel  sued  for ;  if 
the  chattel  is  owned  by  several,  all  must  join  in  the  action. '-'' 
"When  a  joint  owner  authorized  to  sell  makes  false  and  fraudu- 
lent representations  as  to  the  soundness  of  a  chattel,  whereby  a 
person  is  induced  to  purchase,  all  the  joint  owners  are  liable  for 
the  deceit. 28 

1  Gent  r.  Lvnch,  23  Md.  64  ;  generally  White  v.  Brooks,  43  N.  H. 
40i: ;  Parker  v.  Parker,  1  Allen,  246  ;  Chandler  v.  Darling,  22  Minn.  KOS ; 
compare  Brizandine  v.  Frankfort  li,  Co.  2  Mon.  B.  33. 

2  Gent  r.  Lynch,  23  Md.  64;  Webber  v.  Merrill,  84  N.  II.  208; 
Tiiompson  v.  Hoskins,  11  Mass.  419 ;  and  see  Mitchell  v.  Chambers,  43 
Midi.  157;  Chardler  ■?'.  Darling,  22  Minn.  305;  see  also  Smoot  v. 
Wat  lien,  8  Mo.  523 ;  Bartlett  v.  Goodwin,  71  Me.  b52. 

3  Gilmore  ?•.  Wilbur,  13  Pick.  124  ;  but  see  Smith  v.  Wiley,  22  Ala. 
400 ;  Tankersley  v.  Childers,  23  Ala.  783;  Kennison  v.  Ham,  29  N.  H.  505. 

4  Allen  ?'.  Ford,  12  Pick.  218  ;  Jones  v.  Hoar,  5  Pick.  289 ;  but  see 
Hill  V.  Davis,  3  N.  H.  384  ;  generallv  Brown  v.  Holbrook,  4  Gray,  103; 
Ladd  V.  lioflsers,  11  Allen,  211 ;  compare  Kobertsr.  Evans,  43  Cal.  381 ; 
I)e  la  (Jiun-ra  v.  Newhall,55  Cal.  23;  Fields  v.  Bland,  81  N.  Y.  241; 
Kak'khofr  r.  Zoehrlant,  40  Wis.  4S0  ;  Bradv  v.  Brennan,  25  Minn.  210  ; 
Logan  V.  Wall  is,  76  N.  C.  418  ;  Collins  v.  Johnson,  1  Hemp.  279  ;  Fiquet 
V.  Allison,  12  :\Iich.  332. 

5  Berkshire  G.  Co.  v.  Wolcott,  2  Allen,  228;  generallv  Frattr. 
Clark,  12  Cal.  !)0  ;  Berry  v.  Tavlor,  5  Hill,  583 ;  Chamblee  v.  McKenzie, 
31  Ark.  162;  Brady  t-.  Brennan,  25  Minn.  210;  Y.  B.  Co.  v.  Newby,  1 
Oreg.  173. 

C    Jones  V.  Hoar,  5  Pick.  290  ;  and  see  Hill  v.  Davis,  3  N.  H.  385. 

7  Robinson  v.  Gushing,  11  Me.  481 ;  Jellison  v.  Lafonta,  19  Pick. 
245 ;  see  Hoyt  ?•.  .Spraguc,  12  Pick.  412. 

8  Robinson  v.  Cushing,  11  Me.  481. 

9  Blanchard  v.  Dyer,  21  Mo.  112 ;  White  v.  Curtis,  ;:5  Me.  534  ;  and 
gcr.erally  sec  Marshall  v.  Mcseley,  21  N.  Y.  281. 


231  JOINT  TENANTS,   TENANTS  IN  C03DI0X.  ?   82 

10  Bowman  v.  Bailey,  10  Vt.  172;  see  Phillips  r.  Pcniivwlt,  I  Ark. 
fil ;  compare  Robinson  v.  Cushiiig,  11  Me.  4«I ;  generufly  iJunie  v. 
JIadlock,4Plck.  459. 

11  Thompson  v.  Cook,  5  N.  J.  L.  5S0. 

12  Kellnm  v.  Knechdt,  17  Hun,  5S3  ;  generally  Chesloy  i-.  Thomp- 
son, 3  X.  H.  2     ;  Quillot  v.  Dossat,  4  Mart.  20.i. 

13  Russell  V.  Russell,  62  Ala.  50;  generally  Permlntcr  >•.  K.-llv,  IS 
Ala.  713;  Cowles  v.  Garrett,  :«J  Ala.  3.50;  Piquet  v.  .Mlisoii.  12  Mich. 
:i30;  and  see  Goell  v.  Morse.  126  Mass.  481 ;  Weld  v.  Oliver.  21  Pick. 
531  ;  White  v.  Brooks,  43  N.  H.  405. 

14  Smith  V.  Rice,  56  Ala.  425  ;  Williams  v.  Xoleii,  ^A  Ala.  16.^  ;  firl-n 
V.  Wicker.  80  X.  C.  :i44  ;  Herrin  v.  Katon,  13 Me.  ISHi ;  iiiul  hcc  VunihUl 
B.  Co.  r.  X'ewby,  1  Oreg.  173 ;  Boston  v.  Morris,  25  X.  J.  Kq.  476  ;  Curr 
V.  Dodge,  40  X.  H.  407  ;  Given  v.  Kelly,  85  Pa.  St.  312. 

15  Lucas  V.  Wassan,  3  Dev.  SOS  ;  Moore  v.  Love,  3  .Tones.  217  ;  Grim 
V.  Wicker,  80  X.  C.  :i44  ;  Ripley  v.  Davis,  15  Mich.  7  i ;  .set-  l-itt  r.  Poi- 
v.-av.  12  Ired.  72 ;  Delaney  v.  Root,  99  Mass.  547 ;  Given  r.  Kelly,  65 
Pa.' St.  312. 

IG  Stall  r.  Wilbur,  77  X.  Y.  1&4 ;  Lobdell  r.  .Stowell,  .:i  X.  Y.  73; 
Lobdell  V.  Stowell,  37  How.  Pr.  90;  Piquet  v.  Allison,  12  Mich.  :«! ; 
compare  Powell  v.  Hill,  64  X.  C.  171 ;  Delaiiej-  v.  Root,  li.)  M:;ss.  .>!7. 

17  Move  V.  2  Havw.  fX.  C.)  3S7;   generally  ramphcll  r. 

Campbell,  2  Murph.  65  ;  Powell  v.  Hill,  64  X.  C.  171 ;  Fiquet  r.  Allison, 
12  Mich.  Xil ;  Thompson  v.  Cook,  5  X.  J.  L.  5S0. 

18  Smith  V.  Rice,  56  Ala.  425  ;  Powell  r.  Hill,  M  N.  C.  171 :  BonDcr 
V.  Latham,  1  Ired.  274  ;  Boylston  Ins.  Co.  v.  Davis,  63  X.  C.  21. 

19  Prince  v.  Shepard,  9  Pick.  185. 

20  Brvant  v.  Clifford,  13  Met.  142  ;  Prince  r.  Shepard,  9  Pick.  185; 
Sheppafd  v.  Shelton,34  Ala.  657  ;  and  see  Ladd  v.  JUU,  4  Vt.  170. 

21  Ripley  V.  Crocker,  47  Me.  .373. 

22  Dickev  v.  Mullford,  7  Alb.  L.  J.  416  ;  generally  Costigun  v.  Lunt, 
104  Mass.  217. 

23  Williams  r.  Sheppard,  13  X.  J.  L.  76;  generally  Barston  v.  Fos- 
sett,  11  Mass.  250  ;  Beatty  v.  Bordwell,  91  Pa.  St.  441. 

24  Cleaves  v.  Lord,  3  Gray,  (». 

25  Strother  v.  Butler,  17  Ala.  7;»  ;  generally  Cloon  v.  Insurance  Co. 
1  Handy,  3:3  ;  Hinton  v.  Law,  10  Mo.  701. 

26  True  v.  McGilvery,  43  Me.  4S6. 

27  Parsons  v.  Bovd,  20  Ala.  117;  generally  Clarkson  r.  Hooth,  17 
Gratt.  495. 

23  While  v.  Sawyer,  16  Gray,  53;);  and  see  Davis  r.  ::i:rnett,  4 
Jones.  73. 

?  82.  Same  ccntiaued  — Suits  relating  to  reel  i:rop:rty.— 
As  a  rule  at  common  law  tenants  in  common  coukl  ii^:  join  as 
parties  to  a  real  action. i  By  statute  tbcy  may  join  if  they 
desire,'-^  or  may  sue  separately  ;-^  but  if  there  has  b.t.n  a  sever- 
ance of  the  estate,  and  the  legal  interest  is  several,  each  must 
sue  separately  for  his  damage  for  breach  of  the  covenants  that 


g  82  WHO  MAY  SUE  AND  BE  SUED.  232 

run  with  the  estate.*  In  chancery  they  may  join  in  an  action 
to  perfect  their  title  and  quiet  them  in  their  joint  possession  of 
the  common  estate.^  One  tenant  in  the  actual  possession  of 
tlie  estate  may  maintain  an  action  against  a  co-tenant  to  deter- 
mine the  validity  of  an  adverse  claim  of  title  to  the  premises 
made  by  the  latter.^  In  an  action  for  the  destruction  of  the 
title  deeds  of  the  premises  all  the  tenants  in  common  should 
join."  So  also  Avith  respect  to  tresimsses  on  lands  the  tenants 
should  join  in  an  action  to  recover  for  the  injury  to  their  joint 
possession ;  **  hut  one  tenant  may  sue  alone  as  against  a  mere 
stranger.^  Tenants  in  common  of  a  mill  may  sue  jointly  for  a 
diversion  of  water  therefrom,^"  but  cannot  sue  jointly  for  a 
breach  of  defendant's  covenants  with  reference  to  the  water.n 
If  defendant  fails  to  plead  in  abatement  the  non-joinder  of 
plain tiifs  the  objection  is  waived. ^^  One  tenant  may  maintain 
an  action  on  the  case  against  a  co-tenant  for  any  act  dene  on 
the  land  amounting  to  waste,  but  cannot  maintain  qiiare 
chtusina  fregit  against  him,^^  nor  against  one  who  enters  by 
his  permission.^-*  T^'hcn  the  title  to  lands  is  in  tenants  in  com- 
mon, a  joint  action  of  ejectment  cannot  be  maintained  by  two 
or  more  and  less  than  the  whole  number ;  they  must  all  join,i& 
or  bring  separate  actions,!'^  and  may  join  as  defendants  all 
prrsons  in  possession  of  the  premises,  even  though  they  claim 
separate  and  distinct  parcels  thereof. ^^  One  tenant  cannot 
maintain  ejectment  against  a  co-tenant  without  proof  of  actual 
ouster  there  from .^^  An  ouster  may  be  proved  by  exclusive 
possession,  accompanied  with  a  notorious  claim  of  exclusive 
right ; '"  but  a  mortgage  of  the  whole  estate  by  one  tenant  is 
not  conclusive  evidence  of  an  ouster.^"  If,  however,  the  mort- 
gagee enters  upon  the  share  so  mortgaged  claiming  the  entire 
title  it  is  in  law  an  ouster.^i  Tenants  in  common  may  maintain 
a  joint  action  for  the  recovery  of  rent  when  there  is  an  agree- 
ment to  pay  the  en^tire  rent  to  the  lessors. '''^  If  there  has  not 
been  a  joint  letting  each  tenant  may  maintain  a  separate  action 
for  his  share  of  the  sum  elue  for  the  use  and  occupation.^s 
When  one  joint  ownier  leaves  the  premises  anel  fails  to  cr.ltivate 
he  cannot  in  absence  of  an  agreement  to  pay  rent  maintain  an 


233  JOINT   TENANTS,    TENANTS   IN   COMMON.  >    82 

action  for  use  and  occupation  against  the  joint  tenant  who 
remains  in  possession  and  ci;ltivatcs  a  portion  ni>t  t:;cci;u*ug 
one  half  of  the  premises ;  '-'*  nor  can  the  tenant  in  poKsoaijioa 
maintain  an  action  to  recover  for  such  sliglit  repairs  ati  aro 
neccssary  to  enable  him  to  SDcuro  his  crop."^  A.  and  X.  were 
tenants  in  common  of  land,  X.  died,  leaving  a  widtjw  and 
minor  children,  the  widow  collected  all  and  applied  t::e  rtntji 
in  the  support  of  herself  and  children;  held,  a  joint  action 
would  not  lie  by  A.  against  the  children  to  recover  his  bhare  of 
the  rent.-''  A  tenant  in  common  of  a  life  estate  cannot  re-covor 
treble  damages  under  Eevised  Statutes  (ilaine),  chap.  05.  '{  5, 
for  an  injury  to  the  common  property  by  a  co-tenant;-^  but 
after  a  recovery  in  ejectment  one  tenant  may  maintain  an  action 
of  trespass  for  mesne  profits  against  his  co-tenant.'-'*  When  A. 
sold  to  X.  all  the  standing  grass  upon  premises  owned  in  com- 
mon by  A.  and  B.,  and  X.  harvests  and  removes  the  crop,  ho 
cannot  defeat  a  recovery  of  the  purchase  i^rice  in  an  action  by 
A.  on  the  ground  that  B.  had  forbidden  the  payme-nt.-"'*  The 
right  of  action  for  use  and  occupation  is  in  t!;e  surviving 
tsnant  alone. ^"^  A  court  of  equity  will  entertain  a  bill  for  the 
partition  of  lands  at  the  suit  of  a  joint  tenant  or  te-nant  in  com- 
inon  who  shows  a  clear  title  to  an  undivided  interest  therein  ;'^ 
and  the  right  extends  to  every  estate  in  real  p"oix?rty  htltl 
johitly  with  others. 2-  A.11  the  part  owners  should  be  made 
parties  to  the  proceeeling.^^  and  whether  namcel  as  phintifT  or 
el:fcndant  are  all  actors,  each  representLug  his  own  inuTcst.'* 
To  maintain  the  action  the  plaintiff  must  be  iu  possession  of 
the  premises. ^^  "When  an  actual  partition  of  the  pre'mise-s  can- 
not be  made  without  injun^  to  some  or  all  of  the  parties  in 
interest,  a  sale  may  be  ordered  by  the  court.'^  "When  two 
mortgages  are  given  by  the  same  person  to  several  persons,  and 
to  secure  several  obligations  at  the  same  time  ard  upon  the 
same  land,  the  mortgagors  thereby  become  tenants  in  common, 
their  rights  are  the  same  as  though  one  mortgage  was  given  to 
both  to  secure  to  each  his  separate  debt,''^  each  may  mf^ri-e  lia 
right  by  separate  suit,-^  or  they  may  sue  jointly.'^*  Yi'hcn  one 
tenant  in  common  removes  an  encumbrance  from  tlie  common 


g   82  WHO   MAY   SUE   AND   BE   SUED.  234 

estate,  he  may  recover  contribution  from  his  co-tenants  to  the 
extent  of  their  interests.'*" 

1  Stevenson  v.  C'offerin,  20  N.  11.  VA;  Svvett  v.  Patrick,  ]1  Me. 
ISO. 

2  Swett  V.  Patrick,  11  Me.  180. 

3  Lamb  v.  Danforth,  53  Me.  324. 

4  Allen  v.  Little,  36  Me.  175  ;  generally  Lamb  v.  Danforth,  59  Me. 
321. 

5  Coruwell  r.  Lee,  14  Conn.  527. 
G    Koss  V.  lleintzen,  36  Cal.  314. 

7  Daniels  v.  Daniels,  7  Mass.  136. 

8  Mav  V.  Slade,  24  Tex.  203  ;  Austin  v.  Hall,  13  Johns.  287  ;  Y^inters 
r.  McCJhoe,  3  Snpcfl,  121) ;  sec  Camp  v.  Homesley,  11  Ired.  212  ;  Lathrop 
V.  Arnolfl,  25  3Ie.  i:;6  ;  Colquitt  v.  Howard,  H  Ga.  562  ;  generally 
Lcisse  r.  St.  L.  &  I.  M.  Ry.  Co.  2  Mo.  App.  117.: 

9  Bisrelow  v.  Rising.  42  Vt.  670;  and  see  Camp  v.  Homesley,  11 
Ired,  212  ;  Putney  v.  Lapham,  10  Cush.  234. 

10  Samuels  v.  Blanchard,  25  Wis.  335  ;  generally  Moor  v.  Shaw,  47 
Me.  83;  Ballon  v.  Inhabitants  of  Hopkinton,4  Gray,  017  ;  Sumner  v. 
Tileston,  4  Pick.  303. 

11  Samuels  v.  Blanchard,  25  Wis.  335. 

12  Winters  r.  McGhee,  3  Sneed,  130  ;  Putney  v.  Lapham  10  Cush. 
2:J4  ;  gon(>r;'.llv  Xorthum  v.  Kellogg,  15  Conn.  573  ;  Sumner  v.  Tileston, 
4  Pick.  30S  ;  Hobbs  v.  Hatch,  48  Me.  60. 

13  Anders  v.  Meredith,  4  Dev.  &  B.  200  ;  McPherson  v.  Sequine,  3 
Dev.  154  ;  see  Bishop  ?•.  Blair,  36  Ala.  85 ;  compare  Thompson  v.  Ger- 
rlsh,  57  X.  H.  86  ;  M'ood  v.  Griffin,  46  N.  H.  237  ;  generally  Moody  v. 
McClellan,33Ala.  45. 

14  Anders  v.  Meredith,  4  Dev.  &  B.  200  ;  but  see  Wood  v.  Griffin,  4G 
N.  H.  237. 

15  Hasbrouck  v.  Bunce,  62  X.  Y.  479  ;  compare  AVatrous  t'.  McGrew, 
IG  Tex.  511 ;  Morenhaut  v.  Wilson,  52  Cal.  263  ;  authorities  hifra. 

16  May  v.  Slade,  24  Tex.  207  ;  and  see  AVatrous  f.  McGrew,  16  Tex. 
511 ;  Hasbrouck  v.  Bunco,  62  N.  Y.  473  ;  generally  Stark  v.  Barrett,  15 
Cal.  371 ;  Ki;:g  r.  Bullock,  9  Dana,  41;  Winthrop  v.  Grimes,  Wright, 
:i31 ;  Rchoboth  v.  Hunt,  1  Pick.  225  ;  Hines  v.  Trantham,  27  Ala.  361  ; 
compare  Dowey  v.  Lambior.  7  Cal.  347 ;  Donner  v.  Palmer,  51  Cal.  eBO ; 
see  also  Goller  v.  Fett,  30  Cai.  484  ;  Touchard  v.  Keycs,  21  Cal.  20J. 

17  Woolfolli  V.  Ashby,  2  Met.  (Ky.)  238. 

18  Linker  v.  Benson,  67  IST.  C.  153  ;  Trustees  etc.  v.  Johnson,  60  Barb. 
123  ;  generally  Avery  r.  Hale,  CO  Vt.  13  ;  Elliott  v.  Frakes,  71  Ind.  412  ; 
Den  r.  Johnson.  Bush.  335;  Lawton  v.  Adams,  23  Ga.  275;  WMlson  z\ 
Collinshaw,  13  Pa.  St.  277. 

19  Avery  v.  Hall,  50  Vt.  13  ;  Trustees  etc.  v.  Johnson,  66  Barb.  123  ; 
SCO  Hodtrdon  v.  Shannon,  44  N.  H.  577 ;  Wood  v,  Griffin,  46  X.  H.  2;^  ; 
Great  Falls  v.  Worster,  15  X.  H.  460. 

20^IIodgdon  v.  Shannon,  44  N.  H.  578  ;  Wilson  v.  Collinshaw,  13  Pa. 

21  Wood  V.  Griffin,  40  N.  H.  237. 

22  Wall  V.  HiMds.  4  Gray,  268;  and  see  Xewton  v.  Reardon,  2 
Cranch  C.  C.  51  ;  Price  v.  Pickett,  21  Ala.  743. 


235  JOrS'T  TENANTS,   TENANTS  IN   CO^niON.  \   82 

23  Wood  V.  Montgomery,  60  Ala.  oO:) ;  gsnerallv  Snillh  v.  V.'IIhv,  22 
Ala.  400. 

24  Becnel  v.  Becnel,  23  La.  An.  150 ;  llulfoiir  v.  Balfour, :«  I^i.  An. 
299  ;  and  see  Peck  v.  Carpenter,  7  Gray,  2>;. 

25  Becnel  v.  Becnel,  23  La.  An.  150;  Balfour  v.  Balfour,  .T5  La.  An. 
293. 

26  Shepardson  v.  Bowland,  28  Wis.  Ill ;  generally  Taylor  v.  Pk-rfC, 
43  Me.  &41. 

27  Richardson  v.  Richardson,  64  IsIq.  62. 

28  Tongue  r.  Nutwell,  31  Md.  319  ;  generally  Bennett  r.  Bulloc'.:,  .Vi 
Pa.  St.  3C6  ;  Critchfield  v.  Humbert,  3J  Pa.  8t.  423  ;  Holdfast  r.  .Shep- 
ard,  9  Ired.  223  ;  Thomas  v.  Kelly,  13  Ired.  45. 

29  Brown  v.  "Wellington,  106  Mass.  319  ;  and  see  Peck  v.  Carpenter, 
7  Gray,  283 ;  compare  Goodspeed  v.  W.  S.  L.  Work.s,  2  Utah,  2:,). 

30  Dell  V.  Gardner,  25  Ark.  13.5. 

31  Arnett  v.  Bailey,  60  Ala.  439 ;  generally  Horton  r.  5^1e<;;,'c>,  2.i  .Ma. 
493. 

32  Tabler  v.  Wiseman,  2  Ohio  St.  210;  and  see  Smith  r.  I'r::::.  ir, 
Ohio,  5.50. 

33  Sutter  v.  San  Francisco,  36  Cal.  114 ;  generally  De  Uprey  v,  De 
ITprey,  27  Cal.  :W1. 

34  Senter  v.  De  Bernal,  38  Cal.  642 ;  Morenhout  v.  Higuera,  32  Cal. 
295. 

35  Wommack  v.  Whitmore.  53  Mo.  457;  Adams  v.  Ames  Iron  Co. 
24  Conn.  233  ;  generallv  Browiicll  v.  Brownell,  19  Wend.  :>09  :  hut  .see 
Tapler  v.  Wiseman,  2  Ohio  St.  211  ;  Arnett  v.  Bailey,  60  Ala.  439. 

36  Holmes  v.  Holmes,  2  Jones  Eq.  335 ;  generally  see  Long  r.  Mul- 
ford,  17  Ohio  St.  4S5. 

37  Cochran  r.  Goodell,  131  Mass.  465 ;  Howard  v.  Chase.  104  Mass. 
2.51  ;  see  also  Webster  v.  Vandeventer,  6  Graj",  429. 

33    Burnett  v.  Pratt,  22  Pick.  557. 

39  2Coyes  v.  Barnet,  57  X.  H.  695  ;  Cochran  v.  Goodell,  131  Mass.  -I^G. 

40  Titsworth  v.  Stout,  49  111.  SO. 


•A  £3  \VHO  3L\Y  SUE  A:>D  EE  SUED.  230 


CHAPTER  XII. 
ji.-.s"- ::i:  A^-D  serva:;t,  pkincipal  axd  aci:xt,  pkincipae  a:,-d 

SURETY,    bailor  Al^D   BAILEE. 

J  r,:!.  Master  and  servant,  suits  by  and  against. 

2  £}.  Principal  and  a^'ent,  suits  by. 

§  to.  8amo  continued,  suits  agaiiir.t. 

1  CC>.  Principal  r.nd  surety,  suiis  by  a:'.d  ag;i1nst. 

2  i;7,  Uailor  and  bailee,  Huits  by  and  against. 

g  C3.  Hcstsr  and  servant,  suits  by  and  against.  — A 
minor  has  no  claim  for  services  rendered  by  liim  during 
minority,  the  right  of  action  therefor  h  in  the  parent ;  ^  so  the 
parent  U  the  owner  of  the  clothing  furnished  for  the  use  of  the 
minor,  and  may  recover  for  its  loss  or  destruction ;  ^  as  between 
brothers  or  other  persons  standing  in  near  relation  to  each 
other,  the  law  will  not  imply  a  contract  to  pay  for  board  and 
lodging  or  for  work  and  labor  given  or  performed  one  for  the 
other,  in  absence  of  express  promise.^  When  a  person  employs 
another  to  perform  labor  for  him  during  a  stated  term  he  may 
maintain  an  action  against  a  third  person  who,  knowing  of 
such  contract  of  employment,  entices,  hires,  or  persuades  the 
laborer  to  leave  the  employment  during  the  term.-*  In  an 
action  for  the  seduction  of  a  minor  child  the  relation  of  master 
and  servant  must  exist  either  actually  or  constructively  to 
enable  the  father  to  recover  therefor. '^  If  the  child  be  of  full 
age  she  must  be  in  her  father's  service  so  as  to  constitute  in 
law  and  in  fact  the  relation  of  master  and  servant.*'  It  is  no 
defense  to  the  action  that  the  crime  was  rape  and  not  seduc- 
tion,^ nor  is  it  a  defense  to  the  action  that  the  servant  con- 
sented willingly  or  even  in  fact  seduced  the  defendant  ;**  but  if 
the  defendant  and  the  daughter  slept  together  in  accordance 
with  the  custom  known  as  "bundling,"  and  with  the  knowledge 
of  plaintiff,  the  knowledge  amounts  to  connivance  and  is  a  good 
defense  to  the  action.^    The  action  h  founded  upon  the  relation 


237  M.\STER  AND  SEEVAXT.  J  88 

of  master  and  servant,  and  not  upon  that  of  parent  and  child, 
and  the  gist  of  the  action  is  the  consequential  loss  of  service  ;  •" 
but  the  relation  of  master  and  servant  is  little  more  than  fiction 
made  use  of  as  necessary  to  support  the  action. '*  Vixm  the 
death  of  the  father  prosecuting  the  action  as  plaintiff  the  action 
abates  and  cannot  be  revived. i-  It  is  a  principle  of  the  com- 
mon law-  that  a  master  may  maintain  an  action  for  a  loss  of 
service  sustained  by  the  tortious  act  of  another,  whctlier  tho 
servant  be  a  child  or  not.^^  When  an  injury  results  to  a  cor- 
poration from  the  negligent  acts  of  an  employee  in  the  jxTform- 
ance  of  his  duties,  it  may  recover  damage  in  an  action  against 
him.^*  The  general  rule  is  that  when  a  master  employs  a  ser- 
vant to  do  an  act  which  involves  the  iise  of  force  against  tho 
person  or  property  of  another,  and  the  servant  in  the  course  of 
his  employment  uses  force  in  a  manner  or  to  an  unlawful 
extent,  both  are  liable  jointly  as  trespassers. ^^  The  master  is 
liable  for  tortious  acts  of  his  servant  done  in  the  course  of  hia 
employment,  whether  the  act  or  omission  be  negligent,  fraud- 
ulent, or  deceitful,  and  it  is  immaterial  whether  the  act  done 
be  authorized  or  forbidden  by  the  master ;  ^^  but  he  is  not  liaVilo 
for  injuries  resulting  fi'om  negligent  acts  of  the  servant  while 
engaged  in  an  unauthorized  act,  beyond  the  scope  and  duty  of 
his  employment.!^  A  distinction  exists  between  a  contractor 
and  a  servant ;  if  a  person  employed  to  do  work  acts  in  pursu- 
ance of  a  contract  with  his  employer,  and  the  power  of  direct- 
ing and  controlling  the  work  is  parted  with  by  the  employer 
and  given  to  the  contractor,  he  (the  contractor)  is  liable  for 
negligent  acts  of  employees  whereby  injury  is  sustained  ;  •''  but 
if  the  employer  retains  the  power  of  directing  and  controlling 
the  time  and  manner  of  executing  the  work  or  of  refraining 
from  executing  it,  the  employer  is  liable  ;  ^^  and  so  where  an 
obstruction  or  defect  which  occasions  the  injury  results  directly 
from  the  acts  which  the  contractor  agrees  and  is  authoriziil  to 
do,  the  contractor  and  employer  are  equally  liable. ■•'"  After 
the  work  is  completed  and  accepted  by  the  employer  he  is  liable 
for  mjuries  received  by  others  whom  he  inducts  to  use  it, 
when  the  injury  results  from  negligence  in  its  construction,  its 


g    83  VEO   MAY   SUE   A>-D   BE   SUED.  2S8 

dangerous  condition  not  being  apparent  to  tbem.^^  YThen  one 
agrees  to  furnish  another  with  a  team  and  driver,  the  former  i^ 
liable  for  injuries  caused  by  the  incompetence  of  the  servant ;  - 
but  for  acts  done  within  the  scope  of  this  employment  and  in 
pursuance  of  his  orders  the  hirer  is  liable."^  An  action  on  the 
case  will  not  lie  against  the  master  and  servant  jointly  for  the 
negligent  acts  of  the  servant  alone,  the  master  not  being  present 
or  authorizing  them.-*  When  the  personal  negligence  of  the 
master  has  direc  ly  caiised  an  injury  to  the  servant,  the  liability 
is  the  same  as  though  caused  to  one  not  a  servant ;  '^^  but  for  a 
mere  negligence  of  an  employee  the  master  is  not  liable  to 
another  engaged  in  the  same  general  service.  ^^^  When  a  person 
is  employed  to  do  certain  work  at  a  stated  salary,  and  it  is 
shown  that  he  has  been  ready  and  prepared  at  all  times  during 
the  period  of  the  engagement  to  do  the  work,  he  is  entitleel  to 
recover  the  whole  amount  of  the  salary  without  regard  to  the 
amount  of  work  done ;  ^^  but  if  dischargeel  during  the  term  of 
emplt;yment  for  cause,  he  must  iTse  reasonable  diligence  to 
obtain  employment  of  the  kind  or  similar  to  that  mentioned  in 
the  contract.-** 

1  Dufield  V.  Cross,  12  lU.  397. 

2  Parmelee  v.  Smith.  21  111.  622. 

3  State  V.  Connoway,  2  Houst.  203. 

4  Jones  V.  Blocker,  43  Ga.  331 :  and  see  Salter  v.  Howard,  43  Ga. 
603;  Barron  v.  Collins.  49  Ga.  581;  Walker  v.  Cronin,  107  Mass.  562; 
Jlaskins  v.  Boyster,  70  N.  C.  604. 

5  Kennedy  v.  Shea,  110  Mass.  150 ;  generally  Hornketh  r.  Barr,  8 
Serg.  &  R.  37  ;  Greenwood  v.  Greenwood,  28  Md.  380;  IVWAulay  v. 
Eirkhoud,  13  Ired.  30;  Briggs  v.  ilvaus,  5  Ired.  19;  Sover  v.  1)111,3 
Iowa, :}:;;). 

6  Phipps  V.  Garland,  3  Dev.  &  B.  45 ;  Nickleson  v.  Stryker,  10 
Johns.  137  ;  McDaniel  v.  Edwards,  7  Ired.  409. 

7  Kennedy  v.  Shea,  110  Mass.  151 ;  Furnam  v.  Applegiite,  23  N.  J. 
L.  29. 

8  McAulay  v.  Birkhead,  13  Ired.  30. 

9  Hoi  lis  V.  Wells,  3  Pa.  L.  J.  171. 

10  South  V.  Denniston,  2  Watts.  476  ;  Hollis  v.  Wells,  3  Pti.  L.  J.  £0 ; 
31cDanicl  V.  Edward,  7  Ired.  409;  Greenwood  v.  Greenwood,  23  Md. 
S'jO  ;  Kennedy  v.  Shea,  110  Mass.  161. 

11  Ilollis  V.  Wells,  3  Pa.  L.  J.  .^1 ;  Briggs  v.  Evan.s,  5  Ired.  20. 

12  McClure  v.  Miller,  4  Hawks,  l."7. 

,,l\^^^'"^.f|.l;^''^rd  V.  Washburn,  3  Denio,  373;  Ames  v.  T'nion  Railway 
11/  Mass.  .>13 ;  Passenger  By.  Co.  v.  Stuller,  54  Pa.  St.  378. 


239  FEES'CIPAL  A>rD  AGEXT.  g  84 

14  :Mobile  &  :SI.  Ey.  Co.  v.  Clanton  59  Ala.  .'»2. 

15  Holmes  v.  Wakefield,  12  Allen,  5S1 ;  Hewett  r.  Swift.  3  Allen 
422  ;  Moore  v.  Fitchoiirj-  Ry.  4  Gray,  467. 

16  Maddox  i-.  Brown,  71  Me.  433  ;  Redding  v.  S.  C.  Rr.  Co.  3  .S  c  C  • 
Simonton  r.  Loring,  6S  Me.  164  ;  Phila.  &  Reading  Rv.'Co.  »•.  Derbv! 
14  How.  486;  generally  Garretzen  v.  Dueckkel,  50  Mo!  107  ;  Cousins  V 
Han.  &  St.  Jo.  Ry.  Co.  68  Mo.  575;  Goddard  v.  (irand  Trunk  ICv  .57 
Me.  211 ;  Atlantic  &  G.  W.  Ry.  Co.  v.  Dunn,  19  Ohio  .St.  167  ;  < '.  &  N 
W.  Ry.  Co.  V.  Williams,  5.5  HI.  1»6. 

17  Cavanah  v.  Dinsmore,  12  Hun,  467;  Quinn  r.  Power,  17  ITun, 
101 ;  Parker  v.  Erie  Ry.  Co.  5  Hun,  5S  ;  Maddo.\  v.  Brown,  71  Me.  433; 
Herlihy  v.  Smith,  116  Mass.  265  ;  Bard  v.  Yohn,  26  Pa.  St.  45S. 

13  Conners  v.  Hennessey,  112  Mass.  98;  generally  Brackef  r 
Lubko,  4  Allen,  140  ;  Forsythe  v.  Hooper,  11  Alkn.  421  ;  Mulchev  r. 
MethoJist  Soc.  125  Mass.  4SJ;  Hilliard  v.  Richardson,  3  Grav,  ijO; 
Town  cf  Pierrepont  v.  Loveless,  72  X.  Y.  215;  Hundhaus-^n  r.'Bond, 
36  Wis.  40;  Robbins  v.  Chicago,  4  Wall.  679  ;  compare  Metz  v.  Buffalo 
C.  <!c  P.  Ry.  Co.  53  X.  Y.  63 ;  and  see  McCarthy  r.  Second  Parish,  etc. 
71  Me.  321. 

IJ  Forsythe  v.  Hooper,  11  Allen.  421 ;  Brackett  v.  Lubke,4  Allen, 
140 ;  Connors  v.  Hennessey,  112  Mass.  98. 

20  Robbins  v.  Chicago,  4  Wall.  679 ;  generally  Hundhansen  v.  Bond, 
o<J  Wis.  40  ;  Storry  r.  L'tica,  17  2y.  Y.  105;  Lowell  v.  Boston  &  Lowell 
Ry.  2.i  Pick.  30  ;  and  see  Ames  r.  Jordan,  71  Me.  »41. 

21  Mulchev  v.  Methodist  Soc.  125  Mass.  4S0 ;  and  see  Coughtrv  r. 
Globe  Woolen  Co.  56  X.  Y.  126 ;  Gilbert  v.  Xagle,  113  Mass.  278. 

22  Ames  r.  Jordan,  71  Me.  541. 

23  Ames  v.  Jordan,  71  Me.  541 ;  generaUj-  Bard  r.  Y'oun,  26  Pa.  .St, 
483  ;  Herlihy  v.  Smith,  116  Mass.  265. 

24  Bailey  v.  Bussing,  37  Conn.  .3.51 ;  and  see  Parsons  r.  Wlnchell,  5 
Cush.  5J3 ;  Wood  r.  Luscomb,  23  Wis.  283  ;  generally  Bard  i-.  Yohn,  26 
Pa.  St.  438  ;  Mulchey  r.  Methodist  Soc.  125  Mass.  4^0. 

25  McMahon  r.  Walsh,  11  Jones  &  S.  37 ;  S.  C.  McMahon  v.  Walsh. 
74  X.  Y^.  602;  generally  Span  v.  Elv,  8  Hun,  2-57;  Xoves  v.  Smith.  2j 
Vt.  61 ;  Cone  v.  Del.  L.  &  W.  Ry.  Co.  15  Hun,  173 ;  Mobile  <fc  ^L  Rv. 
Co.  V.  Smith,  5J  Ala.  248. 

26  Crispin  r.  Babbett.  81  N.  Y.  520  ;  generally  see  Cone  v.  Del.  L.  * 
W.  Rv.  Co.  81  X.  Y.  20S;  Mulchev  r.  Methodist  Soc.  125  Mass.  Afii; 
Henry  v.  Staten  Is.  Ry.  Co.  81  X.  Y.  37G ;  Mobile  &  M.  Ry.  Co.  r. 
Smith,  5J  Ala.  248. 

27  Bogart  v.  Xew  Orleans  Park,  28  La.  An.  951 ;  generally  Cann  r. 
Williams,  3  Houst.  78 ;  Leach  v.  Rogers,  28  Ga.  248  ;  Matern  v.  Glbbs. 
1  Sprague,  153. 

23    Leatherberry  c.  Odell,  12  The  Reporter,  16-3. 

I  84.  Principal  and  agent,  suits  by.  —The  general  rulo  is 
that  when  an  agent  makes  a  contract  as  agent  it  is  treated  as 
the  contract  of  his  principal,  and  the  latter  only  can  sue  or  be 
sued  upon  it ;  ^  but  if  the  contract  is  made,  not  as  the  represen- 
tative of  another,  but  in  his  own  name,  although  it  may  be 
notorious  that  he  is  in  fact  acting  for  another,  he  is  personally 


g  84  WHO  MAY  SUE  AND  BE  SUED.  240 

a  party  to  the  contract,  and  may  sue  in  his  own  name,  although 
he  has  no  personal  interebt ;  2  so  -when  a  person  l;y  siirplc  con- 
tract deals  with  an  agent  Avho  does  not  disclose  the  fact  of  his 
agency,  he  may  be  made  liable  in  a  suit  in  the  name  of  the 
principal  to  the  same  extent  as  if  the  agent  had  been  principal, 
and  the  suit  had  been  brought  in  his  name  ;  ^  and  if  the  princi- 
pal reside  in  another  State  the  fact  that  defendant  has  been 
discharged  by  a  local  court  of  insolvency  from  his  debts  will  be 
no  defense  to  the  action.*  "When  a  plaintiff  sues  in  his  own 
name  as  agent,  he  must  disclose  the  name  of  his  principal  in 
his  petition.^  When  a  note  is  made  payable  to  A.  B,,  president, 
or  A.  B.,  agent,  an  action  thereon  is  properly  brought  in  the 
name  of  A.  B.  individually;*^  and  so  if  indorsed  to  S.  F., 
cashier,  the  action  is  properly  brought  by  S.  F.,  even  though 
he  may  be  obliged  to  account  for  the  proceeds  to  the  bank  of 
which  he  is  cashier.'^  When  a  note  was  made  to  A.,  P.  S.  of  a 
lodge  of  Odd  Fellows,  it  was  held  an  action  might  be  main- 
tained thereon  in  his  name  with  his  consent,  and  the  consent  of 
those  interested,  even  though  he  was  no  longer  P.  S.  of  the 
lodge ;  **  but  the  principal  may  sue  on  a  note  made  on  his  be- 
half and  for  his  benefit,  although  unnegotiable  and  made  pay- 
able to  his  agent.**  When  the  party  in  interest  conveys  the 
legal  title  to  a  note  to  a  third  person,  the  latter  may  maintain 
an  action  thereon  in  his  own  name,^"  and  the  maker  may  offer 
every  defense  to  the  suit  of  the  agent,  that  he  could  to  a  suit 
thereon  by  the  principal ;  ^^  but  he  cannot  set  up  the  fact  that  the 
property  is  in  another.^'''  When  an  agent  places  notes  of  his 
principal  in  the  hands  of  an  attorney  for  collection,  and  takes  a 
receipt  therefor  to  himself,  he  may,  when  the  money  is  col- 
Lcted,  maintain  an  action  therefor  in  his  own  name ;  ^^  but 
whc  re  B.,  the  agent  of  A.,  to  whom  a  note  had  been  indorsed  for 
collection,  transfers  it  to  a  bank  for  collection,  without  notice 
c.f  the  facts,  or  to  whom  the  proceeds  belonged,  held  in  an 
action  by  A.  against  the  bank  who  had  collected  the  amount 
of  the  note,  that  the  fact  that  the  latter  had  applied  the  amount 
in  payment  of  a  balance  due  by  the  agent,  and  upon  that 
basis  Lad  settled  with  the  assignee  of  the  agent  in  the  court 


241  PEiNCiPAL  AND  age::t.  ?;  84 

of  insolvency  was  a  good  defense.^'  An  attxDmoy  in  fact  of 
ail  executor  cannot  maintain  an  action  in  liii«  own  name 
for  the  benefit  of  tlie  estate  ;  ^^  the  action  should  bo  in  the  name 
of  the  principal. 1*^  When  an  agent  has  goods  of  liis  princii)alii 
in  his  possession,  and  sells  them  as  his  own  prop-rty,  he 
may  maintain  an  action  for  their  price  ;^^  so  an  agent  who  con- 
tracts iu  his  own  name  may  maintain  an  action  for  dainagc-« 
for  breach  of  the  contract,  i**  If  a  sale  is  made  to  an  ag*  nt  of 
a.iotber,  who  conti'acts  for  the  principal,  the  lattjr  may  niaiii- 
taiu  an  action  for  damages  for  false  representation  made  to  tlio 
agent ;  ^^  and  so  when  the  property  of  one  is  sold  by  another,  an 
a:;:'nt,  if  the  principal  give  notice  to  the  purchaser  before  payment 
to  pay  to  himself  and  not  to  the  agent,  the  purchaser  ii  UmnJ 
to  pay  to  the  principal  subject  to  any  equities  existing  between 
himself  and  the  agent. '-^'^  As  a  rule  an  agent  cannot  sue  in  his  own 
name  in  resi)3ct  to  the  subject-matter  of  his  agency,-'  but  if  he 
has  a  beneficial  interest  in  the  performance  of  the  conti-act.  or 
a  special  p.-operty  in  the  subject-matter  of  the  agreement,  the 
l:gal  interest  and  right  of  action  is  in  him;"  so  if  a  factor 
under  an  entire  contract  for  a  gross  sum  sells  goods,  some  of 
which  belong  to  his  principal,  and  some  to  himself,  the  right 
of  action  for  the  price  is  in  the  factor.'^=*  When  a  p.rson  who 
has  been  constituted  an  attorney  to  sell  lands,  with  power  of 
substitution,  has  substituted  another  person  who  ha.s  made  t'.io 
sale,  the  former  cannot  recover  the  money  ia  an  action  in  his 
own  name. 2* 

1  Sutton  r.  Mansfield,  47  Coun.  383;  generally  Fogg  r.  Sinclair,  5 
Cush.  47i);  Borrowscale  v.  Bosworth,  9.)  Mass.  381. 

2  Frv  V.  Carter,  25  Ala.  47J  ;  see  Buckbee  v.  Brown.  21  Wend.  112  ; 
gaiierallV  Xabors  ?■.  .Shipplv,  15  Ahi.  2)3;  ("ulvor  v.  Bigelow.  <i  Vt. 
255;  C'olburn  v.  Phillips,  13  Gray,  65;  Sutton  7-.  Mu:isti>lrl,  47  l'o:i:'.. 
33J  ;  S2e  Braclen  v.  La.  St.  Ins.  Co.  1  La.  221 ;  Willarcl  ;•.  LiiK.»'ibiihl.  21 
La.  An.  18  ;  Carr  v.  United  States,  13  Ct.  of  CI.  14G ;  Harp  v.  Osjfool.  2 
Hill,  218. 

3  Culver  v.  Bigelow,  43  Vt.  255;  generally  Ilsloy  t-.  Mc'rrl.im.  7 
Cush.  243 ;  Barrv  v.  Page,  10  Grav,  3i» ;  Mat.  Lifo  Ins.  Co.  c.  Alloii.  IIB 
Mass.  39);  Sutton  v.  Mansfield.  47  Conn.  3S);  U.  R.  &  E.  Uy.  lo.  v. 
Walsh,  85  111.  5);  Nicoll  v.  Burke.  78  X.  Y.  583;  a:ul  s.-c  Foster  r. 
Smith,  2  Cold.  475  ;  Ramsdell  v.  Unitod  Stat.'s,  2  1 1.  of  CI.  515  :  M  Nalr 
V.  Thompson,  5  Mart.  (La.)  610  ;  compare  BradiMi  i .  La.  St.  Ins.  Co.  I 
La.  221;  and  see  Jowers  v.  Blandv,  5>  Ga.  3s:{;  Brooks  r.  Mmturn. 
1  Cal.  4S3;  Ruiz   r.  Norton,  4  Cal,  357;  Thurn   r.   Alta    T  i    «...   i:, 

Pa-ities  — 21 


2  85  "WHO  MAY  SUE  AND  BE  SUED.  242 

Cal.  474  ;  Oclrichs  v.  Ford,  21  Md.  501 ;  see  Sisson  v.  Cleveland  &  T. 
Ry.  Co.  14  Mich.  4% ;  Newcomb  v.  Clark,  1  Donio,  228. 

4  Ilsley  t>.  Merriam,  7  Cush.  243. 

5  Willord  v.  Lugenbuhl,  24  La.  An.  18. 

6  Ely  V.  Porter,  5S  Mo.  153  ;  generally  Durfee  v.  Morris,  49  Mo.  55 ; 
Ord  V.  McKee,  5  Cal.  516  ;  Buffuni  v.  Chadwick,  8  Mass.  103  ;  Clap  v. 
Day,  2  Me.  307  ;  Whitcomb  v.  Smart,  38  Me.  26-5. 

7  Fairfield  v.  Adams,  IG  Pick.  382. 

8  AVliitcomb  v.  Smart,  38  Me.  265;  generally  Bragg  v.  Greenleaf, 
14  Me.  3«6. 

9  Natl.  Life  Ins.  Co.  v.  Allen,  116  Mass.  390  ;  see  Garland  v.  Rey- 
nolds, 20  Me.  4(! ;  State  v.  Boies,  11  Me.  474. 

10  La  Coste  r.  De  Armas,  2  La.  365;  generally  Smead  v.  Fay,  1 
Disn.  .>n  ;  Devol  v.  Barnes,  7  Hun,  342. 

11  La  Coste  v.  De  Armas,  2  La,  365  ;  generally  Huntington  v.  Knox, 
7  Cush.  373. 

12  Smead  t;.  Fay,  1  Disn.  531. 

13  Moore  r.  Henderson,  18  Ala.  232  ;  generally  Comml.  Bank  of 
Penn.  ?■.  Union  Bank,  11  N.  Y.  208;  see  Branch  Bank  of  Moutg'y  v. 
Svndor,  7  Ala.  301) ;  Herron  v.  Bullitt,  3  Sneed,  498  ;  but  see  Sevier  v. 
Holliday,  1  Hemp.  160. 

14  AVood  V.  Boylston  Natl.  Bank,  129  Ma.ss.  :^\). 

15  Nerlv  v.  Robinson,  1  Hemp.  9;  and  see  Todd  v.  Phifer,  1  N.  J. 
L.  ;J62  ;  but  compare  Helme  v.  Littlejohn,  12  La.  An.  299;  see  also  Hol- 
loway  V.  Holloway,  30  Tex.  176  ;  Robson  v.  Tait,  13  Tex.  273. 

16  Brackney  v.  Shreve,  1  N.  J.  L.  33. 

17  Coggburn  v.  Simpson,  22  Mo.  352  ;  generally  Phillips  v.  Henshaw, 
5  Cal.  51 1. 

13    Beard  v.  Sloan,  38  Ind.  135. 

19  Tuckwell  v.  Lambert,  5  Cush.  24;  and  generally  Emma  S.  M. 
Co.  i\  Emma  S.  M.  Co.  10  The  Reporter,  .'551. 

20  Huntington  ?».  Knox,  7  Cush.  373;  and  see  Ilsley  v.  Merriam,  7 
Cush.  243  ;  Burry  v.  Page,  10  Gray,  399. 

21  Lineker  v.  Ayeshford,  1  Cal.  76  ;  generally  Swift  v.  Swift,  46  Cal. 
267  ;  Garland  v.  Reynolds,  20  Me.  46  ;  Gunn  v.  Cantine,  10  Johns.  387  ; 
White  ?'.  Bennett,  1  Mo.  102  ;  Thompson  v.  Fargo,  biU.  Y.480  ;  Sutton 
V.  Mansfield,  47  Conn.  388  ;  see  also  Gidding  v.  Dudley,  47  Mc^.  51. 

22  Porter  v.  Raymond,  53  N".  H.  526  ;  generally  Y.  8.  Tel.  Co.  v. 
Oilderslcyc,  29  Md.  243;  Bryan  v.  Wilson,  27  Ala.  214;  Reynolds  v. 
Reynolds,  10  Neb.  576  ;  Buckbee  v.  Brown,  21  Wend.  112. 

23  Roosevelt  v.  Doherty,  129  Blass.  r;02. 

24  Ilntchings  v.  Gilman,  9  N.  H.  :J^2 ;  generally  Hollowavr.  Hollo- 
way,  30  Tex.  !76;  Robson  v.  Tait,  13  Tex.  272;  'Steele  v.  McElroy,  1 
Sneed,  'M'2. 

'i  85.  Same  continued,  suits  against.  —  As  a  rule  it  may 
be  stated  that  \yhen  tlic  employment  of  a  principal  gives  his 
agent  means  or  opportunity,  which  he  uses  while  so  employed 
in  committing  an  injury  to  a  third  person,  the  principal  will  be 
held  responsible,^  whether  the  acts  be  done  with  his  knowledge 


243  PIUN'CIPAL  AND  AGEXT.  J  85 

and  consent,  or  subsequent  sanction; 2  but  it  may  W(  U  1x5 
doubted  whether  a  city  government  may  ratify  the  negiigtnt  or 
tortious  acts  of  its  officers,  knowing  them  to  be  such,  ho  as  to 
make  the  city  liable  t;herefor.»  It  is  a  general  rule  tliat  a  Bcr- 
vant  who  is  injured  by  the  negligence  or  misconduct  of  a  fi  How 
servant,  while  both  are  aiding  in  the  common  busiucsn  of  the 
same  master,  cannot  maintain  an  action  against  tl:e  ma.xtcr  wlio 
is  not  chargeable  with  negligence  or  wrong;*  but  if  there  ii 
any  fault  in  the  selection  or  retaining  other  servants,^  or  in 
employing  unsafe  machinery,  the  mastrr  will  be  liable  for  all 
injury  to  his  servants  in  consequence. ^  When  injury  results  to 
a  third  person  from  the  negligent  acts  or  omissions  of  an  agent 
done  in  the  course  of  his  emploj-ment,  and  in  the  absence  of 
the  principal,  both  cannot  be  jointly  sued  in  an  action  to 
recover  damages  therefor  ;  ^  if  the  agent  be  in  the  emil.jymeut 
of  two  or  more  employers,  the  latter  are  liable  either  jointly  or 
severally.^  The  principal  is  bound  by  the  act  of  his  agent  in 
excess  or  abuse  of  his  actual  authority,  when  a  third  p  rson, 
believing  and  having  a  right  to  believe  that  the  agent  was  act- 
ing within  his  authority,  would  sustain  loss  if  the  a4.t  were  not 
considered  that  of  the  principal.^  It  is  not  indispensiblo  iu 
order  to  binel  the  principal  upon  a  written  instnmunt,  that  it 
should  be  executed  in  his  name  and  as  his  act,  it  is  sufficient  if 
from  the  instrument  it  can  be  gathered  that  the  party  describe 8 
himself  and  acts  as  agent,  and  intenels  thereby  to  biud  his  princi- 
pal,^"  If  an  agent  make  a  contract  iu  his  own  name  without 
disclosing  his  principal,  the  latter  is  nevertheless  bound,  and 
the  agent  merely  adds  his  personal  obligation  to  that  of  tho 
person  employing  him ;  ^^  but  if  a  person  contract  in  his  own 
name  as  trustee  for  othei's,  the  cestuis  are  not  liable,  although 
the  fact  that  he  was  a  trustee  was  not  known  at  tla-  time  tho 
contract  wr.s  made.^^  ^^  agent  as  such  who  is  authorized  to 
sell  gooels  of  his  principal  has  no  authority  to  biud  him 
by  collecting  a  portion  of  the  purchase  price  K^fore  it  is 
due;  and  if  it  is  so  advanced  anel  embezzled  by  tho  agent  it 
may  be  treated  as  a  loan  to  the  agent,  and  the  principal  may 
recover  from  the  buyer.^-*    When  money  is  overpaid  to  an  agent 


•A  85  WHO  MAY  SUE  AMD  BE  SUED.  244 

by  a  purchaser,  the  agency  being  undisclosed,  the  latter  may 
recover  the  amoiint  overpaid  from  the  agent,  even  though  he 
has  paid  it  over  to  his  principal ;  i*  but  if  the  agency  was  known 
the  fact  of  payment  to  the  principal  would  be  a  good  defense.  ^^ 
If  an  agent  in  executing  a  contract  employ  words  which  in 
legal  effect  charge  himself,  he  may  be  treated  as  the  contractirg 
party ; '«  but  if  the  instrument  in  legal  effect  bind  the  principal 
only,  the  agent  cannot  be  sued  thereon,  for  the  simple  reason 
that  the  contract  is  not  his.^^  When  a  public  oflBcer  who 
stands  in  the  relation  of  agent  of  the  government  contracts  as 
such  officer,  and  within  the  scope  of  his  authority,  his  contract 
is  public  and  not  personal  j^"  but  this  rule  does  not  apply 
when  neither  the  government  nor  the  public  in  any  way  can  be 
considered  nor  held  responsible  for  such  contract. ^^  "When  a 
draft  is  deposited  with  a  bank  and  the  amount  credited  to  the 
depositor,  the  bank  is  merely  the  agent  for  the  collection  of  the 
draft,  and  does  not  guarantee  its  payment.^"  If  specific  chat- 
tels are  taken  by  an  agent,  who  holds  notes  for  collection 
instead  of  money,  the  principal  may  treat  the  agent  as  trustee 
and  follow  the  funel.^i  If  on  the  other  hand  the  agent  had  col- 
lecteel  tlie  money  and  paid  it  to  the  principal,  and  the  agent  was 
obliged  to  refund,  the  note  having  been  forged,  an  action  will 
lie  on  his  behalf  against  the  principal  for  money  had  and 
received."-^-  As  a  rule  the  principal  cannot  maintain  an  action 
against  the  agent  for  money  collected  and  not  paid  over  until 
after  demand,  but  this  I'ule  does  not  apply  when  the  agent 
denies  his  liability.^-' 

1  >'.  O.  Jackson  <fe  G.  North  Ky,  Co,?'.  AUbritton,  38  Miss.  277; 
generally  Mayer  r.  McLure,  36  Miss.  400  ;  Exum  v.  Br:ster,  35  Miss. 
3!)l  ;  IMeMahon  v.  Davidson,  12  Minn.  359. 

2  Exum  r.  Brister,  35  Miss.  391  ;  senerallv  Elliott  v.  McKay,  4 
Jones,  60  ;  McMahon  v.  Davidson,  12  Minn.  373. 

3  Mitchell  r.  Rockland,  52  Me.  125 ;  compare  Perley  v.  George- 
town, 7  li ray,  464. 

4  Mc:Mahon  v.  Davidson,  12  Minn.  372  ;  Mike  v.  Boston  &  Albany 
lly.  53  >s.  y.  552  ;  generally  Ford  v.  Fitchburg  By.  Co.  110  Mass.  260. 

b  McMahon  v.  Davidson,  12  Minn.  372  ;  Filke  v.  Boston  <fe  Albany 
Ry.  Xi  S.  Y.  .5.53  ;  compare  Malone  v.  Hathaway,  64  N.  Y.  7. 

f)  Kain  v.  Smith,  80  X.  Y.  467 ;  McMahon  v.  Davidson,  12  Minn. 
372 ;  Filke  r.  Boston  &  Albany  Rv.  53  N.  Y.  551 ;  Booth  v.  Boston  & 
Albany  Ry.  73  N.  Y.  40  ;  Fuller  v.  Jewett,  80  N.  Y.  52  ;  Ford  v.  Fitch- 
burg Ry.  Co.  110  Mass.  259. 


245  PEDCCIPAL  AND  SUEETT.  g  86 

7  Campbell  v.  Portland  Sugar  Co.  62  Mo.  5GI  ;  see  also  I'a-, . 
Winchell,  5Cush.  5J3. 

8  Kalii  V.  Smith,  80  X.  Y.  46:!) ;  Roberts  r.  Johnson,  5<  N.  V.  c. ;. 

9  Walsh  I'.  Hartford  Ins.  Co.  T-i  X.  Y.  10 ;  see  JJarnurd  >•.  Whi  :  -. 
24  Me.  414  ;  Armour  r.  Mich.  Cent.  Itr.  Co.  65  X.  Y.  Ill :  ( -lai:!!!  r. ».  - 
heim,  G6X.  Y.  303  ;  compare  Whito:i  v.  Spring,  74  X.  V.  172. 

10  Love  V.  fe.  X.  L.  W.  &  M.  Co.  92  Cal.  6.54  ;  Sutton.)-.  MunstUld.  ;: 
Conn.  38J;  see  also  Learned  v.  Johns,  9  Allen  420;  in-kcrs  »-.  'luwu- 
send,  24  X.  Y.  60;  compare  Eureka  M.  Co.  v.  W.  Munuf.  C<).  47  Vu 
446  ;  Everett  r.  Drew,  12J  Mass.  15!. 

11  Youghiogheny  I.  Co.  v.  Smith,  66  Pa.  St.  MS ;  generallv  Everett, 
V.  Drew,  12J  Mass.  151  ;  Inglehart  v.  Thousand  I.  11.  Co.  7'llii:i,  5** ; 
Cato  r.  Hutson,  7  Mo.  148. 

12  Everett  v.  Drew,  129  Mass.  151. 

13  Whiton  v.  Spring,  74  X.  Y.  171. 

14  Smith  V.  Kellj',  43  Mich.  391. 

15  Engels  r.  Heatly,  5  Cal.  135  ;  compare  Booker  v.  Jones.  .">">  Ala. 
275. 

16  Hall  V.  Crandall,  2D  Cal.  571. 

17  Hall  V.  Crandall,  2-)  Cal.  571  ;  see  Hall  r.  Auburn  T.  Co.  27  C;U. 
257  ;  generally  Jose  v.  Moulton,  37  Me.  ;367  ;  Batchelder  v.  McKeniiey, 
36  Me.  .555. 

IS  Hodgson  V.  Dexter,  1  Cranch,  345 ;  Perrv  v.  Ilvde,  10  Conn.  K:  ; 
compare  Walker  v.  Swartwout,  12  John.s.  446. 

19  Dwinelle  v.  Henriques,  1  Cal.  392  ;  Gurnee  v.  Maloney.  3s  Cal.  .SS. 

20  Xat.  Gold  Bank  v.  McDonald.  51  Cal.  66;  Freeholders  of  M.  Co. 
r.  State  Bank,  ;f2  X.  J.  Eq.  4Cyi  ;  Little  v.  Derby,  7  Mich.  327. 

21  Hall  V.  Davis,  3  Jones  Eq.  414. 

22  Little  V.  Derby,  7  Mich.  327  ;  generally  Wiggs  v.  Koontz,  43  Ind. 
430  ;  Jones  v.  Beale,  19  Ga.  171. 

2:3    Hammelt  v.  Brown.  60  Ala.  4;).1. 

g  86.  Principal  and  surety,  suits  by  and  against.  — 
When  several  sureties  pay  the  debt  of  their  principal,  auil 
there  is  no  evidence  of  a  partnership  or  joint  in  crest,  or  of 
payment  from  a  joint  fund,  the  presumption  is  that  each  piud 
his  proportion,  and  a  several  action  will  lie  for  its  recovery 
from  the  principal ;  ^  but  if  the  debt  was  paid  from  their  j»>int 
funds  a  joint  action  may  be  maintained  for  rcinibursoment.'- 
The  right  of  a  surety  to  have  contribution  from  his  co-suitty 
is  not  founded  upon  any  principal  of  contract,  but  is  the  result 
of  natural  justice ;  '^  the  equity  of  the  plaintiflf  lies  in  the  iii.-»t)lv- 
ency  of  the  principal,  and  that  fact  should  be  alleged.*  .Ml 
the  sureties  who  are  solvent  and  are  in  the  State  shouM  Ik? 
made  parties  to  the  bill.^  If  some  of  tlie  sureties  have  jointly 
paid  the  debt  they  may  maintain  a  joint  action  for  coniribu- 


g  86  WHO  MAY  SUE   AND  BE  SUED.  246 

tion.''"  "When  land  is  sold  by  a  clerk  and  master,  under  a 
decree  of  a  court  of  equity,  and  the  legal  title  is  retained  until 
the  pnrchase  money  is  p  lid,  if  the  principal  become  insolvent 
before  so  doing,  the  sureties  have  an  immediate  equity,  either 
before  or  after  paying  the  money,  to  subject  the  land  to  pay- 
ment of  the  debt.'  "When  a  creditor  fraudulently  aids  and 
assist:*  liis  debtor  in  removing  from  the  county,  with  the  intent 
to  hinder  and  delay  the  surety  in  the  collection  of  such  sum  as 
he  might  have  to  pay  for  such  debtor,  a  court  of  equity  will 
cnj(jin  such  creditor  from  collecting  the  debt  from  the  surety.** 
The  summary  remedy  given  by  statute  to  the  surety  who  has 
paid  in  whole  or  in  part,  the  debt  of  his  i^rincipal  is  cu- 
mulative only,  and  does  not  preclude  a  common-law  action.'* 
In  a  proceeding  by  a  surety  to  compel  the  assignment  of  a 
judgment  to  himself  after  he  has  j^aid  it,  it  is  necessary  that 
the  principal  have  notice  of  the  application  for  the  order,  and 
have  an  opportunity  to  defend  and  show  cause  against  it.^"  An 
action  may  be  maintained  against  a  surety  alone  Avithout  join- 
ing the  principal,  when  by  statute  the  obligation  is  made  joint 
and  several,  although  at  common  law  the  bond  would  be 
joint;  11  and  in  sucli  case  the  surety  will  not  be  allowed  to 
bring  in  the  principal,  cither  by  cross-bill  or  otherwise,  for  the 
purpose  of  having  the  relation  of  principal  and  surety  certified 
as  provided  by  the  Code.^-  When  a  building  contract  is  en- 
tered into  by  one,  and  its  faithful  performance  is  guaranteed 
by  a  third  person,  a  joint  action  will  lie  against  both  for  breach 
of  its  provisions,"  Where  several  sureties  signed  an  official 
bond,  and  each  surety  bound  himself  severally  "for  the  sum 
and  the  sum  alone  sot  respectively  opposite  their  names,"  a 
joint  action  cannot  be  maintained  against  them  for  the  amount 
of  the  b(  nd.i'  An  action  may  be  maintained  against  the  two 
sui-vivors  of  the  three  makers  of  a  joint  bond,  if  the  other 
maker  be  dead,  and  died  insolvent,  even  though  the  decedent 
was  the  principal,  and  the  survivors  the  sureties.!^  To  enable 
plaintiff  to  maintain  a  joint  action  agidnst  the  sureties  upon 
two  separate  bonds,  all  the  defendants  should  be  jointly  liable 
upon  each  instrument,'''    Upon  the  d-ath  of  one  of  two  sure- 


217  PEDfCrPAL  A>T)   SURETY.  ^   86 

ties  to  a  joint  obligation  at  common  law,  his  estate  was  di»- 
cliarged  botli  at  law  and  in  equity,  and  the  survivor  alone  wm 
liable. 1'  This  rule  never  was  a  part  of  the  law  of  Indiana,  and 
in  that  Stato  the  estate  of  the  decedent  is  liable. '«  In  an  actiuu 
for  damages  for  wrongfully  suing  out  a  writ  of  attacliment,  a 
joint  action  may  be  maintained  against  the  principal  and  Hure- 
ties,  without  the  fact  of  the  breach  of  the  bond  by  the  princi- 
pal having  been  first  judcially  determined. i"  If  the  bond 
contain  different  conditions  to  perform  difiFerent  tilings  in 
favor  of  diffei-ent  persons,  each  obligee  has  a  distinct  and  sep- 
arate remedy.^"  A  surety  upon  a  forthcoming  bond  in  replevin 
is  not  released  from  its  obligations  by  reason  of  the  dLschargo 
in  bankriiptcy  of  his  principal ;  21  so  suit  will  lie  against  them 
if  the  principal  is  insolvent  and  a  non-resident.--  When  the 
defendant  in  an  action  of  replevin  gives  a  bond  for  the  return 
of  the  property  to  him,  the  sureties  have  such  an  interest  in 
the  action  as  will  enable  them  to  intervene,  if  the  defendant  is 
insolvent,  and  is  defending  in  bad  faith. '■'^  It  is  only  in  cases 
in  which  the  execution  of  a  judgment  is  enjoined  that,  on  the 
trial  of  the  injunction,  the  sureties  on  the  bond  are  l)y  law 
considered  as  parties  to  the  suit;  in  all  other  cases  defendant 
is  left  to  his  action  on  the  bond.^*  The  death  of  the  princii>al 
in  the  bond  is  no  reason  for  arresting  the  suit  against  the 
surety. ^^  The  sux'eties  on  an  administrator's  l>ond  are  not 
liable  to  a  creditor  of  the  estate  for  the  amount  of  a  judgment 
obtained  by  him  in  an  action  against  the  administrator  com- 
menced after  the  claim  was  barred  by  the  statute,  in  which  tlie 
defendant  appeared  and  pleaded  the  statute,  and  was  after. 
wards  defaulted. 2«  In  a  proceeding  in  equity  to  opu  the 
settlement  of  an  administrator  on  the  ground  of  fraud,  the 
sureties  on  his  bond  may  be  made  parties."-'  The  sureties  on 
an  executor's  bond  cannot  be  sued  iintil  after  default  of  the 
executor  iu  the  probate  court. ^'^  When  two  bonds  are  given, 
one  when  letters  are  issued,  and  the  other  when  real  estate  is 
about  to  be  sold,  and  the  conditions  of  each  of  the  bonds  are 
the  same,  and  the  burden  of  the  sureties  in  each  is  the  same, 
all  the  sureties  on  both  bonds  may  be  joined  as  defendants  lu 


g   86  "WHO  HAY  SUE  AND  BE  SUED.  248 

an  action  upon  both  bonds. ^^  \Vhcn  a  guardian  is  a  non-resi- 
dent and  dies  insolvent,  and  no  administrator  has  been  ap- 
pointed,  and  one  of  the  sureties  on  his  bond  also  dies  insolvent, 
an  action  for  an  account  mav  be  maintained  against  the  sur- 
viving surety  alone. =*"  A  bill  in  equity  may  be  maintained 
against  a  guardian  and  the  sureties  on  his  bond  jointly  for 
an  account ;  ^^  but  the  sureties  are  not  liable  to  a  creditor  for  the 
non-payment  of  a  note  given  by  the  guardian  for  the  board  of 
his  ward."*-  Sureties  on  official  bonds  are  only  liable  for  such 
acts  of  their  principal  as  relate  to  their  official  duty,^^  and  are 
not  liable  for  a  defalcation  of  the  principal  which  occurred 
prior  to  the  execution  of  the  bond.^* 

1  Lombard  v.  Cobb,  14  Me.  223 ;  generally  Peabody  v.  Chapman, 
20  N.  H.  4-210 ;  Cliipman  v.  Morrill,  20  Cal.  i:J5  ;  Sevier  r.  Roddie,  51  Mo. 
586  ;  Koss  v.  Allen,  67  111.  317  ;  Chandler  v.  Brainard,  14  Pick.  287  ;  Pur- 
viance  r.  Sutherland,  2  Ohio  St.  481. 

2  Enos  V.  Leach.  18  Hun,  141 ;  generally  Ross  v.  Allen,  67  111.  317  ; 
Pearson  v.  Parker,  3  N.  H.  360;  Appleton  v.  Bascom,  3  Met.  171; 
Chandlers.  Brainard.  14  Pick.  287  ;  compare  Boggs  r.  Curtin,  10  Serg. 

6  R.  213 ;  Prescott  v.  iS'ewell,  39  Vt.  86  ;  Litler  v.  'Horsey,  2  Ohio,  211 ; 
Gould  V.  Gould,  8  Cowen,  169. 

3  Allen  v.  Wood,  3  Ired.  Eq.  388;  and  see  Leary  v.  Cheshire,  3 
Jones  Eq.  172. 

4  Allen  V.  Wood,  3  Ired.  Eq.  398  ;  Raluey  v.  Yarborough,  2  Ired. 
Eq.  241). 

5  Jones  r.  Blanton,  6  Ired.  Eq.  118. 

6  Fletcher  v.  Jackson,  23  Vt.  533  ;  Prescott  v.  Newell,  39  Vt.  86  ; 
nr.ghes  V.  Boone,  81  ^T.  C.  205. 

7  Egerton  r.  Alley.  6  Ired.  Eq.  18") ;  Smith  v.  Smith,  5  Ired.  Eq. 
41  ;  generally  Talbot  v.  Wilkius,  31  Ark.  421. 

8  Smith  V.  Hays,  1  Jones  Eq.  322  ;  and  see  Pipkin  v.  Bond,  5  Ired. 
Eq.96. 

9  Riley  v.  Stallworth,  55  Ala.  484. 

10  Veach  v.  Wickersham,  11  Bush,  262. 

11  Liverdsfeger  v.  State,  21  Kan.  476  ;  Jenks  r.  School  District,  18 
Kan.  356  :  and  see  Wiikins  v.  Bank,  31  Ohio  St.  566. 

12  Wilkiiis  V.  Bank,  31  Ohio  St.  566  ;  generallv  see  Smith  v.  Har- 
rcll,16La.  An.  190. 

13  McQuail  v.  Powers,  46  Ala.  52  ;  see  WallLs  v.  Carpenter,  13 
Allen,  1!). 

14  State  V.  Powers,  52  Miss.  200  ;  Grocers'  Bank  v.  Kingman,  16 
Gray,  473  ;  Colt  v.  Learned,  118  Mass.  382. 

15  Hall  V.  Woolloy,  5 )  Ga.  757  ;  and  see  Robinson  v.  Soule,  56  Miss. 
S49  ;  generally  Houghton  r.  Ledbetter,  37  Tex.  161 ;  Parham  v.  Cobb, 

7  La.  An.  157. 

16  Cook  V.  Herwitz.lO  Hun,  587;  and  compare  Hurlock  v.  Rein- 
hardt,  41  Tex.  5S1 ;  and  see  Powell  v.  Powell,  48  Cal.  236. 


249  BAILOE   KXD  BAILEE.  ^   87 

17  Wooi  V.  Fisk,  63  N.  Y.  2+S  ;  Getty  v.  Blnse.  4)  N.  V.  :<>t7  :  Plrk- 
ersgill  V,  Lahens,  15  Wall.  143  ;  and  see  United  States  v.  Price,  9  How. 
90. 

IS  Hudloson  V.  Armstrong,  70  Ind.  101  ;  compare  Ewlng  v.  Ferjfu- 
sou,  33  Gratt.  ^3. 

19  Tompkins  v.  Toland,  46  Tex.  589  ;  and  see  Churchill  r.  Abraham , 
22  111.  461 ;  generally  Buck  v.  Lewis,  9  Minn.  315. 

20  IrLsb  )•.  Wright,  12  Rob.  (La.  i  563. 

21  Robinson  v.  Soule,  56  Miss.  5.51. 

22  Houghton  v.  Ledbetter,  37  Tex.  161. 

23  Coburn  r.  Smart,  53  C'al.  743. 

24  Scott  V.  SheriflF,  30  La.  An.  5-il. 

25  Parham  v.  Cobb,  7  La.  An.  157. 

26  Robinson  v.  Hodge,  117  Mass.  224  ;  Curry  v.  Mack.  90  111.  KH  ;  but 
see  Weber  v.  Xath,  51  Iowa,  :i77  ;  Irwin  v.  Backus,  25  Cal.  21'j. 

27  Osborne  v.  Graham,  30  Ark.  66  ;  generally  Moreu  v.  McCown,28 
Ark.  96  ;  compare  Rorbeck  v.  Dorsheimer,  25  X.  J.  Eq.  517. 

23    Hamlin  v.  Kinney,  2  Oreg.  91. 
23    Powell  V.  Powell,  4S  Cal.  236. 

30  Frierson  v.  Travis,  3d  Ala.  165;  generally  Mooro  r.  Hood,  9 
Rich.  Eq.  323. 

.31  Cudd?back  v.  Kent,  5  Paige,  95  ;  and  see  Butler  v.  Durham,  3 
Ired.  Eq.  5M  ;  generally  Badger  r.  Daniel.  79  X.  C.  37J. 

32  McKinnon  v.  McKinnon,  81  X.  C.  202. 

33  O-tenstein  v.  Alpaugh,  9  Xeb.  240  ;  Clinton  v.  XcJson,  2  Utah, 
237. 

34  Mann  r.  Yazoo  City,  31  Miss.  57v1. 

^  87.  Bailor  and  bailee,  suits  by  ani  £gainst.--As  a  gen- 
eral rule  a  person  iu  the  peaceful  possession  of  pvcp.nty  may 
maintain  an  action  for  any  wrongful  tlaaiage  it  mny  sustain 
against  any  person  but  the  true  owner,  and  cv.n  ajainst  him 
if  the  p-jsses^rion  be  rightful  and  coupled  with  an  interest.* 
Tlie  owner  and  consignor  of  goods  delivered  to  a  common 
carrier  for  transportation  may  maintain  an  action  for  their 
1j3^  ;■''  so  the  consignor  named  in  the  bill  of  lading  may  main- 
tain an  action  for  an  injury  to  the  goods,  although  ho  has  no 
prop3rty,  general  or  special,  therein.^  A  bailee  of  gootls 
may  sue  the  carrier  for  delivering  to  the  consignee  without 
payment,  that  being  imposed  as  tlio  condition  of  di  livery.* 
The  remedy  against  a  carrier  for  loss  or  damage  to  goods 
delivered  to  him  for  transportation  is  not  exclusively  confined 
to  the  consignor;  either  the  consignor  with  whom  the  contract 
was  made  or  the  consignee   (the  owner)  may  maintain  the 


§   87  ^VHC)   MAT   SUE  AND  BE   SUED.  250 

action.^  The  consignee  has  a  right,  when  goods  are  consigned 
Avithout  reservation,  to  sue  for  their  loss  by  the  carrier.*^  Al- 
though another  person  may  be  the  owner,  the  obligation  is  to 
deliver  to  the  consignee.^  A  carrier  is  liable  as  such  only 
when  goods  are  delivered  to  it  for  immediate  transportation. ^ 
Its  duty  is  not  completed  until  it  has  delivered  or  oflfered  to 
deliver  the  goods  to  the  consignee,  or  has  given  him  (if  he  can 
l)e  found)  due  notice  of  their  arrival,  and  furnishing  him  a 
reasonable  time  to  take  charge  of  or  remove  the  same.**  The 
corporation  and  the  shipper  are  not  on  equal  terms,  and  when 
money  is  paid  them  for  excessive  charges  it  is  not  voluntarily 
paid,  and  may  be  recovered  back  as  for  money  had  and 
received. ^"  An  action  for  an  injury  to  sheep  injured  while  in 
the  possession  of  lessee  during  the  term  of  bailment  must  be 
maintained  by  the  lessee, ^^  and  he  may  maintain  an  action  to 
recover  the  possession  as  against  a  stranger  and  wrong-doer. i"-* 
A  pledge  is  a  bailment  of  goods  by  a  debtor  to  his  creditor  to 
be  kept  until  the  debt  is  discharged,  a  special  property  in  them 
passes  to  the  pledgee,  and  he  may  hold  them  against  all  iDcrsons 
having  no  better  right  until  the  debt  is  paid ;  ^"^  if  a  promissoiy 
note,  and  taken  before  maturity,  the  pledgee  is  considered  a 
bona  fide  holder  for  value:  he  has  a  paramount  right  of  action 
against  the  previous  parties  thereto,  and  is  not  afftcted  by  the 
equities. 1*  He  may  proceed  directly  against  the  pledgor  to 
recover  his  debt  without  first  soiling  the  pledge  or  offering  to 
surrender  it.'^  The  finder  of  lost  property  is  entitled  to  its 
possession  as  against  all  persons  but  the  true  owner,  and  gener- 
ally the  place  where  the  article  is  found  creates  no  exception  to 
the  rule  ;  ^«  but  proporty  is  not  lost  in  the  sense  of  the  rule  if 
it  is  intentionally  laid  on  a  table,  counter,  or  other  place  by  the 
owner,  who  forgot  to  take  it  away,  and  in  such  case  the  owner 
of  the  premises  is  entitled  to  retain  the  custody. ^^  An  action 
for  movable  property  is  properly  brought  against  the  person  in 
possession,  and  although  the  plaintiff  may  sue  him  in  the 
capacity  in  which  he  holds  the  property,  yet  he  is  not  obliged 
to  pursue  that  course. '«  When  money  is  delivered  to  X.  for 
the  use  of  A.,  or  to  be  paid  or  delivered  to  A.,  the  acceptance 


251  BAILOR  AND  BAILEE.  g  87 

of  such  money  amounts  to  an  express  promise  from  the  baiUn- 
to  the  bailor  to  pay  or  dehvor  the  money  acconhngly,  and  A. 
may  sue  therefor  at  Uw,  particularly  if  the  bailt-e  (X.)  prom- 
ises to  pay  him ;  and  -without  such  promise  A.  mij,'lit  sue  in 
equity.  1^  As  a  i-ub  no  right  of  action  accnics  against  a  bailee  of 
property  unless  there  has  been  some  wrongful  conversion  or  some 
loss  by  negligence  on  his  part  until  after  a  demand  ma<le  upon 
him  and  a  refusal  by  him  to  deliver  the  deposit. 2"  A  gratuitouH 
bailee  who,  without  notice  to  the  bailor  and  without  his  author- 
ity, sells  the  bailed  goods  is  guilty  of  conversion. ^i  To  relieve 
himself  from  liability  for  failure  to  deliver  goods  he  must  bIiow 
loss  of  the  goods  without  negligence  on  his  part,  or  that  they 
were  taken  from  him  by  force  or  fraud. ^'-^ 

1  C.  &  X.  W.  Ry.  Co.  V.  Shultz,  5."5  III.  422  ;  Harpes  v.  Ilarpos,  62 
Ga.  394  ;  White  v.  Bascom,  23  Vt.  2t>S. 

2  Ames  v.  First  Div.  St.  Paul  &  P.  Ry.  Co.  12  Minn.  413 :  nnd  Roe 
Blumeiithal  v.  Biaiiierd,  liS  Vt.  410;  Sanford  v.  Housutonic  Hv.  Co.  II 
Cush.  155 ;  generally  Elkins  v.  Boston  &  Maine  Ky.  Co.  l:»  N.  H.  ;CB. 

3  Blaucharcl  v.  Page,  8  Grav,  2S1  ;  generallv  Finn  v.  Wcstorn  Rv. 
Co.  112  Mass.  52J;  Mayall  v.  Boston  &  M.  Ry."in  N.  H.  126  :  c.  A  -A. 
Ry.  Co.  V.  Shea,  66  III.  480  ;  Hooper  v.  Vhir.  &  y.  \V.  Ry.  Co.  27  Wis. 
90  ;  but  see  Thompson  i'.  Fargo,  63  N.  Y.  4S0. 

4  Murray  v.  "Warner,  55  X.  IT.  54S  ;  generallv  (U.  Westorn  Rv.  Co. 
V.  McComas.  33  111.  187  ;  McGill  v.  Monette,  37  Ala.  .W. 

5  Staflford  v.  ^Valke^,  67  111.  84  ;  generallv  Gt.  Western  Rv.  Co.  r. 
McComas,  33  111.  186;  but  see  Thompson  i-.  Fargo,  &{  N.  Y.  i* ;  sw 
also  Jones  v.  Sims,  6  Port.  156. 

6  Morgan  v.  Bell,  4  Mart.  (La.)  619 ;  Merchants'  Disp.  Co.  v.  .Smith. 
67  111.  543. 

7  Southern  Exp.  Co.  v.  Armstead,  50  Ala.  352 ;  Mobile  *  «.  Ry. 
Co.  ?'.  Williams,  54  Ala.  171 ;  generallv  Ela  r.  Merchants'  L'nion  Exp. 
Co.  29  Wis.  615;  but  compare  O'Neill  v.  X.  Y.  C.  ^fe  H.  R.  Ry.  Co.  «*> 
X.  Y.  142  ;  see  also  Am.  E.xp.  Co.  v.  Haggard,  ;T7  111.  470. 

8  O'Xeill  V.  X-.  Y.  Cent.  &  II.  Ry.  Co.  60  X.  Y.  142. 

9  Faulkner  v.  Hart,  82  X.  Y.  416  ;  Graves  v.  U.  &  X.  Y.  Steamboat 
Co.  as  Conn.  146;  Moses  v.  Boston  &  Maine  Ry.  to.  »2  N.  H.  .Vt! : 
Sleade  v.  Payne,  14  La.  An.  45<;  Steamboat  .Sultana  r.  Chapman,  5 
Wis.  463  ;  but  see  Rico  v.  Hart,  118  Mass.  207. 

10  Mobile  &  Montg.  Rv.  Co.  ?-.  Steiner.  61  Ala.  .■»!«  ;  generally  C.  * 
A.  Rj-.  Co.  V.  C.  V.  &  \V.  Coal  Co.  79  111.  1:50 ;  Robln.son  r.  Er.r.ell.  71 
X.  C.  233 ;  but  see  Potomac  C.  Co.  v.  C.  &  P.  Ry.  Co.  ;»  Md.  'iij : 
Arnold  v.  Georgia  Ry.  &  B.  Co.  50  Ga.  :506. 

11  Triscony  v.  Orr.  40  Cal.  612;  generally  Beckwith  v.  Talbot,  2 
Colo.  65:) ;  Adams  v.  Childers,  10  Mo.  779. 

12  Xoles  V.  Marable,  50  ALa.  363  ;  and  see  Hunt  v.  Strew, ."«  Mich.  JW. 

13  Pelt  V.  Burr,  31  Ark.  35 ;  g-'nerallv  Chambree  v.  McKenzie.  .11 
Ark.  15J;  Baldwin  v.  Canfield.  26  Minn.  45;  Welscr  r.  Smith,  21  La. 


2  87  "WHO  MAY  SUE  A>'D  BE   SUED.  252 

All.  156;  Sonoma  Vallev  Bank  v.  Hill,  13  The  Reporter,  fiS;  compare 
Starkweather  v.  Prince,  1  McAr.  144;  and  see  Noles  v.  Marable,  50 
AJiU  $56  ;  Michigan  St.  Bank  v.  Gardner,  ;J  Gray,  308. 

14  Curtis  V.  Mohr,  18  Wis.  618 ;  and  see  Roberts  v.  Jacks,  31  Ark.  593. 

15  Sonoma  Valley  Bank  v.  Hill,  13  The  Reporter.  63  ;  Sonoma  Val- 
ley Bank  v.  Hill,  59  Cal.  109;  generally  Smith  v.  Stout,  63  Me.  206; 
Robinson  v.  Hurley,  11  Iowa,  412. 

16  Hamaoher  ?'.  Blanchard,  00  Pa.  St.  370  ;  generaliy  White  i\ 
Ba.scom,  28  Vt.  271. 

17  McAvoy  v.  Medina,  11  Allen,  MO. 

18  Warren  v.  Saltenberer,  6  La.  An.  354. 

19  Trorlicht  r.  Weizenecker,  1  Mo.  App.  482;  generally  Graves  v. 
Ticknor,  6  N.  H.  539 ;  Parker  v.  Pisher,  39  111.  167  ;  Hayes  v.  Kedzie,  11 
Hun,  580. 

20  McLain  v.  Huffman,  30  Ark.  4.32;  generally  see  Pearce  t'.  Pro- 
vost, 4  Houst.  467  ;  Levi  v.  Silverstein,  22  La.  An.  363  ;  Wade  v.  Carson 
R.  W.  Co.  13  Nev.  49. 

21  Dale  v.  Brinkerhoff,  7  Daly,  46. 

22  Hayes  v.  Kedzie,  11  Hun,  530;  generally  Bates  v.  Stansell.  19 
Mich.  91. 


253  PABTXEBS.  7,   89 


CHAPTER  XIII. 

PAKTN'EESHIPS,     COKPOEATIONS,    UNINXOBPOEATED  ASSOCIATIONS, 
ETC. 

§88.  Partners,  suits  by. 

2  SD.  Partners,  suits  against. 

2  90.  Corporations,  suits  by. 

2  91.  Corporations,  suits  against. 

2  92.  Unincorporated  associations,  suits  by  and  against. 

2  93.  Stockholders,  suits  by  and  against. 

§  88.  Partners,  suits  by. — An  unincorporated  company 
cannot  sue  in  the  name  of  the  firm,^  but  must  pnxjeed  in  the 
indivi'lual  names  of  its  members;"''  if,  however,  the  individual 
names  of  the  partners  are  not  set  out  it  is  a  matter  of  abate- 
ment only,  and  if  not  taken  advantage  of  it  is  waived.*  All  the 
parties  composing  the  firm  should  be  named  as  plaintiffs, 
unless  they  arc  dormant  partners.*  A  managing  partner  can- 
not sue  for  all,^  and  so  all  the  partners  who  sue  must  Ik?  <  ntitlod 
to  relief,  and  if  not  entitled  the  bill  will  be  dismissed.''  "Wht  n 
the  j)ayce  of  a  note  delivered  it  indorsed  generally  to  indtiuiiily 
a  member  of  a  firm  as  his  security,  it  was  held  that  the  maker 
could  not  object  that  a  suit  was  brought  upon  it  in  the  name  of 
the  firm  to  enforce  its  payment. '  When  a  conti-act  is  made  and 
entered  into  by  one  partner  alone,  but  in  fact  for  the  firm, 
although  that  fact  is  not  disclosed,  the  firm  may  sue  thereon, 
pi'oper  allegations  being  made  in  the  complaint.*'  An  action 
will  lie  in  favor  of  co-partners,  against  one  who  fraudulently 
induced  plaintiif  to  give  credit  to  an  insolvent,  and  thereby  lo!<t 
their  goods. ^  When  one  partner  sues  for  an  injury  to  partner- 
ship property,  and  makes  his  co-partner  defendant  for  want  of 
his  consent  to  join  as  plaintiff,  the  recovery  must  be  entire  for 
the  whole  injuiy.^"  A  receiver  of  partnership  effects  cannot 
maintain  an  action  of  trover  in  his  own  name  against  a  }>erson 
who  converted  the  assets  of  the  firm,  before  his  appointment,  he 
Pakties  — 22 


2   88  WHO   MAY   SUE   AND   BE   SUED.  25i 

must  sue  in  the  name  of  the  firm.^i  "When  goods  are  sold  and 
afterward  are  attached  as  property  of  the  seller,  and  upon  claim 
made  by  the  vondte  an  attachment  bond  is  given  for  his  bene- 
fit, ho  is  a  proper  person  to  sue  thereon,  although  the  goods 
were  bought  for  the  benefit  of  a  firm  of  which  he  was  a  mem- 
ber, and  were  paid  for  by  them,  they  being  Tindisclosed  at  the 
time  of  the  sale,  and  not  mentioned  in  the  bond.^'-^  A  sheriff 
upon  a  demand  against  one  partner  for  his  private  debt  cannot 
seize  the  goods  of  the  partnership,  and  exclude  Iflie  other  part- 
ners from  the  possession,  for  such  trespass  an  action  Avill  lie 
in  favor  of  the  firm  against  the  officer, ^^  An  action  of  assump- 
sit will  not  lie  by  one  partner  against  his  co-p  irtner,  unless 
their  accounts  have  been  settled  and  a  balance  struck,  it  is  not 
8ufficiei;t  that  a  balance  may  be  deduced  from  the  partnership 
books. '^  The  same  rule  applies  when  one  partner  is  a  member 
of  two  firms, ^^  at  law,  but  not  iu  equity;'*^  the  proper  remedy 
is  a  suit  in  equity  for  an  account  and  settlement.^'  One  part- 
ner may,  liowever,  sue  a  co-partner  upon  an  express  agreement 
indcpeniiant  of  partnership  accounts,  and  an  action  of  cove- 
nant may  be  maintained  by  one  partner  against  his  co-partner. i*^ 
One  partner  cannot  sue  his  co-jiartner  for  a  fraudulent  removal 
of  the  firm  jii-operty,  each  are  entitled  to  possession  ;  ^^  but  if 
by  expi-ess  contract  one  is  entitled  to  the  exclusive  possession 
of  a  chattel,  he  may  maintain  replevin  therefor  even  against  his 
co-partner. ^*^  When  one  jDartner  is  excluded  by  the  other  from 
participation  in  the  business  of  the  partnership,  it  is  a  ground  for 
injunction,  restraining  the  partner  from  collecting  partnership 
debts,  and  for  the  appointment  of  a  receiver ;  ^'^  and  go  if  an 
insolvent  partner  attempts  to  sell  all  his  interest  in  the  partner- 
ship property  to  pay  his  individual  debts,  it  is  a  breach  of  the 
partnership  agreement,  for  which  an  action  lies  at  the  instance 
of  the  co-partner. 2^  When  all  the  assets  of  a  firm  are  conveyed 
upon  its  dissolution  to  one  member  thereof,  he  may,  upon  ex- 
press promise  by  the  debtor  to  pay  him,  maintain  an  action  upon 
the  promise  in  his  own  name ;  ^^  but  in  absence  of  a  different 
agreement,  upon  the  dissolution  of  a  partnership,  it  is  regarded 
as  continuing  for  a  final  settlement  of  its  affairs,  and  each  partr 


255  PARTXEKS.  /,  f  8 

nei-  retains  full  possession  of  his  former  powers.^*  At  oomin«.:i 
law  upon  the  dissolution  of  a  partnership  by  the  death  of  a 
co-partner,  actions  on  behalf  of  tlie  firm  sliould  l>e  prriw-cutcU 
in  the  name  of  the  survivors ; '-^^  the  executor  could  not  bo 
joined;  ^^  and  upon  the  death  of  the  surviving  payee  of  a  joint 
note  (partnership)  his  personal  representatives  may  recovor.^ 

1  Pollock  V.  Dunning,  54  111.  117  ;  Kamni  v.  Harker,  .1  On'if.  211  ; 
Smith  V.  Walker,  6  8.  C.  17:i ;  see  authorities  next  non-. 

'2  Bentleyr. Smith,  aCaines,  170  ;  «-enerallvTomlfnso:i  ;•.  Rurk'-, 
10  X.  J.  L.  295  ;  Kamm  v.  Harker,  3  Oivg.  211  ;"  Pollock  ?•.  Duiiriiiii.',  SI 
Ind.  113  ;  Rob't  Brooks  Bro.  &  Co.  v.  Ilartman,  1  Ilfisk.  :\:  ;  sii,i:h  r, 
Walker,  6  S.  C.  173;  Moore  v.  Burnes,  00  Ala.  270;  situs  r.  .1  i".,hs<.i.. 
51  Ala.  182;  compare  Smith  r.  Oregre:.  U  Xeb.  215  ;  Dixon  r.  Dixon,  I  j 
Iowa,  513  ;  Hodges  r.  Kimball,  49  Iowa,  onl. 

•3  Porter  v.  Cresson,  10  Serg.  &  R.  237  ;  and  see  Downer  v.  Morri- 
son, 2  Gratt.  255  ;  Fowler  r.  Williams,  C>1  Mo.  40:5 ;  but  .see  .Smith  r. 
Crichton,  33  Md.  lOG  ;  Banks  v.  Bosler,  4  Bibb.  573. 

4  Smith  V.  Crichton.  33  Md.  106;  Rugelv  B.  &  Co.  »•.  (iill.  15  Jju 
An.  50J  ;  Wright  v.  Williamson,  3  X.  J.  L.  978  ;  generallv  Am.  (  ent. 
Ry.  Co.  V.  Milas,  52  111.  173  ;  Choteau  v.  Raitt,  20  Ohio,  144'. 

5  Brainerd  v.  Bertram,  5  Abb.  X^.  C.  103;  Halliday  v.  I>ogffe:t,8 
Pick.  ;i53  ;  Wilson  v.  Wallace,  8  Serg.  &  R.  54  ;  but'  sec  Kwhjp  r. 
French,  IBlackf.  354  ;  compare  111.  Cent.  Ry.  Co.  v.  Owens,  53  III.  .tn. 

6  Plant  I'.  Voegelin,  30  Ala.  Ifi2  ;  Cockran  r.  Cunningham,  IG  Ala. 
452  ;    generally  Dyas  v.  Dinkgrave,  15  La.  An.  50;{. 

7  Hutchinson  v.  Crane,  100 111.  272  ;  compare  Trott  v.  Irish,  I  .Mien, 
481. 

8  H.  R.  &  E.  Ry.  Co.  r.  Walsh,  85  111.  59;  generally  Lombard  r. 
Johnson,  76  III.  600  ;  compare  the  Ship  Potomac,  2  Black,  5s4;  I>;iw  v. 
Cross.  1  Black,  5:^6. 

9  Ratlin  i>  Gurney,  17  Mass.  182. 

10  Xightmgale  v.  Scannell,  6  Cal.  509. 

11  Yeager  v.  Wallace,  44  Pa.  St.  2W. 

12  State  ex  rel.  Pierce  v.  Merritt,  70  Mo.  2S4  ;  generally  see  Alexan- 
der V.  Jacoby;  23  Ohio  St.  383. 

13  Sanborn  r.  Rovce,  15  Chic.  L.  X.  6 ;  generally  Garvin  f.  Puul.  47 
X.  H.  162  ;  Durborrow's  Appeal,  84  Pa.  St.  405  ;  Levy  r.  Cowan.  27  Ij». 
A!i.  55'i;  Cropper  v.  Coburn,2  Curt.  4<iS ;  Bank  v.  Carrollton  Hv.  11 
Wall.  G23  ;  Farrell  r.  Colwell.  30  X'.  J.  L.  124;  Robinson  v.  Mansrt.l.l. 
13  Pick.  143;  compare  Spaulding  v.  Black,  22  Kan.W;  cornra,  Clark 
V.  Cushing,  52  Cal.  618  ;  and  sec  Robinson  v.  Tevis,  3S  Cal.  6\X 

14  Andrews  r.  Allen,  9  Serg.  &  R.  243;  generally  M'Fadden  r. 
Hunt,  5  Watts  &  S.  46J  ;  Walker  v.  Long.  2  Browne  i  Pa.^  Ml  ;  stone  i-. 
Fouse,3Cal.  2y4  ;  Conrad  c.  C  lUedy.  22  La.  An.  42>:  Dr.'w  >■.  |\r>..ii. 
22  Wis.  G54  ;  Jessup  r.  Cook,  6  X.  J.  L.  ( I  Halst.>  4X> :  but  s,,-  |)..iii:hiss 
r.  Xeil,37Tex.  546;  Paol  i-.  Perdue,  44  Ga.  4.V ;  see  also  |l.-ek\Mth  r. 
Talbot,  2  Colo.  642  ;  Lawrence  r.  Clark,  9  Dana,  259;  Ross  c.  Cornell. 
45  Cal.  136;  Wicks  v.  Lippman,  13  Xev.  501;  Adams  v.  Funk.M  III. 
220. 

15  Corner  v.  Gilman.  53  Md.  365  ;  Pennock  »•.  Swayne.  6  Watts  .t  s. 
241  ;  Morris  v.  Hlllery,  7  How.  (.Miss.)  66  ;  Hall  r.  Logan,  M  P;u  St.  3ai. 


^  89  "^'HO  MAY  SUE  AND  BE  SUED.  256 

10  Ford  1'.  Ind.  Dist.  of  Stuart,  46  Iowa,  295 ;  Gibson  r.  Oliio  Farina 
Co.  2  Disn.  602  ;  and  see  Chandler  v.  Chandler,  4  Pick.  81. 

17  Drew  v.  Person,  22  Wis.  651 ;  generally  Stone  v.  Fonse, .".  Cal.  204  ; 
CaiKMi  r  Barrows,  1  Grav,  .«1 ;  Bentley  v.  Harris,  10  II.  I.  435  ;  Holla- 
(lav  r  Klliott,  :<  Ori'g.  :W1  ;  Malady  r.  Malady, 25  La.  An. 44!);  compare 
Corner  v.  Gilnian,  53  Md.  366  ;  Neil  v.  Greenleaf,  26  Ohio  St.  570. 

IS  Blunt  V.  Williams.  27  Ark.  376;  generally  Glover  v.  Tuck,  24 
Wend  l.-)S;  ^forrison  r.  Stockwell,  9  Dana,  172;  but  see  Simrall  v. 
o'lVumdM  7'M()n.  11.  (IM);  see  also  Russell  ?•.  Grimes,  46  Mo.  411  ;  Neil 
r  (ircciilcaf,  2(!  oliioSt.  luO  ;  Wright  r.  Michie,  6  Gratt.357;  Wills  v. 
.sinunonds,  51  How.  I'r.  .58  ;  Vance  v.  Blair,  IS  Ohio,  533. 

1!)  Robinson  v.  Gllfillan,  15  Hun,  263  ;  generally  Miller  ?•.  Price,  20 
Wis.  120. 

20  Kahle  v.  Sneed,  5!)  Pa.  St.  'iSd. 

21  Wolbert  r-.  Harris,  7  N.  J.  Eq.  621 ;  generally  Parkhurst  r.  Muir, 
7  N.  J.  Eq.  311. 

22  Ross  ?'.  Henderson,  77  N.  C.  172, 

23  Howell  V.  Reynolds.  12  Ala.  131  ;  see  White  v.  Joues,  14  La.  An. 
G31  ;  compare  Stevenson  v.  .Shields,  7  La.  435. 

24  (;annett  v.  Cunningham,  34  Me.  62. 

25  Strang  v.  Hirst,  01  Me.  17  ;  generally  Beach  r.  Hayward,  10  Ohio, 
ACf) ;  Suvdam  v.  Ewing.2Blatchf.  360  ;  Perthamboy  Manuf.  Co.  r.  Con- 
di:. 21  N.  .1.  L.  (M:  Quillen  v.  Arnold,  12  Nev.  '2-iS  ;  Manning  v.  Smith, 
m;  Svv.  87;  Shields  v.  Fuller,  4  Wis.  103;  Roys  v.  Vilas,  18  Wis.  173; 
Hunt  r.  Drane,  32  Miss.  244  ;  compare  Powell  v.  Hopson,  13  La.  An. 
OJO  ;  Notrebe  v.  McKinney,  6  Rob.  (La.)  13  ;  see  also  Brown  v.  A.llen, 
;i5Iowa,  311. 

20    Strang  v.  Hirst,  61  Me.  17  ;  Roys  v.  Vilas,  18  Wio.  173;  Shields  v. 
Fuller  4  Wi.s.  103  ;  see  Brown  v.  Allen,  35  Iowa,  311. 
27    Walker  v.  Galbreath,  3  Head,  316. 

g  89.  Partners,  suits  against.  —  As  a  general  rule  in  actions 
upon  partnership  contracts  all  i^artners  (except  dormant  part- 
ners) should  be  made  defendants  ;  ^  but  the  omission  to  do  so 
can  only  be  taken  advantage  of  by  plea  in  abatement.^  "When 
partners  are  sued  jointly  the  verdict  should  be  against  them 
jointly  and  not  against  one  only,^  unless  some  of  the  defendants 
make  a  personal  defense,  as  infancy,  lunacy,  bankruptcy,  etc. ;  * 
but  by  statute  judgment  may  be  rendered  against  a  part  of  the 
defendants  who  alone  have  been  served  with  pjocess.^  So  if 
three  bo  sued  and  it  appears  that  one  is  not  a  member  of  the 
firm,  judgment  may  be  rendered  against  the  others.*'  By  stat- 
ute in  some  States  the  contracts  of  co-partners  are  joint  and 
several,  and  any  one  of  the  partners  may  be  sued  for  the  whole 
indebtedness  ; '  the  other  partner  will,  however,  upon  applica- 
tion, be  allowed  to  enter  an  appearance  and  j)articipate  in  the 
defense.'*    A  suit  by  or  against  a  company  not  incorporated  by 


257  PARTXEES.  ^   89 

its  firm  name,  without  disclosing  the  names  of  its  partneni, 
could  not  be  maintained  at  common  law,  but  by  the  provisionH 
of  the  Code  an  action  may  be  maintained  against  a  partiierHhip 
in  its  firm  name,^  provided  it  is  doing  business  within  tho 
State  ;  i"  the  action  may  be  brought  against  the  co-partnership 
in  its  firm  name  or  against  tho  partners  by  their  individnal 
names. 11  For  a  tort  arising  from  the  act  or  negligence  of  one 
partner  in  the  course  of  the  partnership  business,  all  the  mem- 
bers of  the  firm  are  liable  as  partners  ;  ^-  but  plaintiff  may  trtat 
the  tort  as  joint  or  several,  and  sue  all  or  any  of  tho  tort 
feasors.!"*  One  partner  cannot  confess  a  judgment  that  will 
bind  his  partner  or  tho  partnership  property  unless  done  in  a 
pending  action. i*  When  a  firm  is  sued  upon  a  note  and  one  of 
the  partners  pleads  non  est  factum,  the  other  making  no  de- 
fense, the  evidence  being  conclusive  that  the  note  was  signctl 
by  him,  a  verdict  for  defendants  is  contrary  to  law,'^  When 
one  partner  executes  a  note  in  his  own  name,  an  action  will  not 
lie  thereon  against  the  firm  even  though  the  money  was  bor- 
rowed for  the  firm, and  applied  to  its  purposes.'^  Assuming 
that  a  partner  can  limit  his  liability  for  contracts  of  a  copart- 
ner made  in  the  interest  of  their  common  venture,  still  to  be 
sufifbient  it  must  be  brought  home  to  a  third  persf)n  contract- 
ing on  the  responsibility  of  the  firm.''  Whtn  a  bill  for  an 
account  charges  that  partners  not  made  parties  are  not  within 
the  jurisdiction  of  the  court,  that  they  have  received  thtir  full 
share  of  tho  partnership  assets,  that  the  defendant  has  rectivetl 
much  more  and  the  plaintiff"  much  less,  a  denuirrc-r  for  n(»n- 
joinder  will  not  be  sustained ;i8  but  as  a  rule  all  partntrs 
should  be  parties  to  a  suit  for  an  accoimt  and  settlenu-nt.'"  and 
must  embrace  all  the  partnership  property.-"  Upon  the  disso- 
lution of  the  partnership  by  the  death  of  a  partner,  the  rmu  dy 
of  a  creditor  for  a  debt  must  be  pursued  against  the  survivr.r  :  -' 
by  statutory  provisions  the  survivor  and  rtprL-seutativos  oi  \Uo 
decedent  may  be  joined."  When  members  of  a  partnership 
form  a  new  firm  they  cannot  be  sued  under  the  new  finn  name 
for  debts  of  the  old  firm,  the  debts  must  be  recovered  in  an 
action  against  the  old  firm.^-* 


^  90  M'HO   MAY  SUE  AND  BE  SUED.  238 

1  Smith  V.  Cooko,  31  :M(1.  179;  generally  Loney  v.  Bailoy,  43  :Md. 
14  ;  Tomlinson  v.  Spencer,  5  Cul.  293;  Douglas  v.  Chapin,  26  Conn.  SO. 

2  Smith  V.  Cooko,  31  Md.  179 ;  see  Loney  v.  Bailey,  43  Md.  14  ;  gon- 
orally  Hicks  v.  Branton,  21  Ark.  191 ;  Alexander  v.  M'Ginn,  3  \yatts, 
221 ;  Cammack  v.  Jolmson,  2  N.  J.  Eq.  167. 

3  Campbell  v.  Bowen,  49  Ga.  418  ;  compare  Felsenthal  v.  Durand, 
86  111.  2:52  ;  Tavlor  v.  Henderson,  17  Serg.  &  li.  456  ;  Miles  v.  Wann,  27 
Miin).  58  ;  Mobres  v.  Bates,  13  L.a.  An.  40. 

4  Folsenthal  v.  Durand,  86  III.  232;  generally  Hammond  v.  St, 
John,  4  Verg.  110. 

5  Felsonthal  v.  Durand,  86  111.  232  ;  generally  Lyons  v.  Gilmore,  1 
How.  ( Miss.)  477  ;  Moore  v.  Burns,  GO  Ala.  270 ;  see  Newton  v.  Heaton, 

42  Iowa,  597. 

6  Miles  V.  ^Vann,  27  Minn.  53. 

7  Keerl  r.  Bridgers,  10  Smedes  &  M.  G14;  Hicks  v.  Branton,  21 
Ark.  191;  Kverson  v.  Ilendric,  22  Iowa,  482;  McCulloeh  ?'.  Judd,  20 
Ala.  705;  Oldham  r.  Henderson,  4  Mo.  302;  but  see  Moores  v.  Bates, 
13  La.  An.  40 ;  Turpery  v.  Lafitte,  19  La.  An.  296. 

8  Peek  v.  Parchan,  52  Iowa,  55. 

9  Haskins  v.  Alcott,  13  Ohio  St.  21G  ;  generally  Moore  v.  Burns,  CO 
Ala.  270;  Sims  ?".  Jacobson,  51  Ala.  187  ;  Newlon  v.  Heaton,  42  Iowa, 
.597  ;  Kcv  V.  Box,  14  La.  An.  497  ;  Gilligmott  &  Co.  v.  Lake  Big  Rd.  Co. 
2  Nev.  224. 

10  Haskins  v.  Alcott,  13  Ohio  St.  216;  see  Key  v.  Box,  14  La.  An. 
497  ;  Brownson  v.  Metcalfe,  1  Handy,  189. 

11  AVIiitman  v.  Keith,  18  Ohio  St.  14'j;  generally  Marienthal  v. 
Amburgh.  2  Disn.  587. 

12  AVitcher  v.  Brewer,  49  Ala.  121. 

13  White  V.  Smith,  12  Rich.  600. 

14  Richardson  1'.  Fuller,  2  Oreg.  ISO;  generally  Grazebrook  r.  Mc- 
Creedie,  9  Wend.  439  ;  Hart  v.  Withers,  1  Pa.  280. 

15  Ransom  v.  Loyless,  49  Ga.  471. 

16  Farmers'  Bank  v.  Bayliss,  4  Mo.  235. 

17  Drumm  ?>.  Hanna,  25  La.  An.  645  ;  generally  Parshall  v.  Finhcr, 

43  Mich.  5:}1 ;  Parker  v.  Leavens,  5  R.  I.  277. 

18  Towle  V.  Pierce,  12  Met.  3^32 ;  generally  Townsend  v.  Auger,  li 
Conn.  :>56  ;  Settembre  v.  Putnam,  30  Cal.  497. 

10  Johnson  v.  Freer,  51  Ga.  313 ;  generally  Settembre  v.  Putna:n,  I'D 
Cal.  497  ;  Keough  v.  Foreman,  33  La.  An.  1435. 

20  Baird  v.  Baird,  1  Dev.  &  B.  Fq.  539. 

21  OfTutt  r.  Scott,  47  Ala.  129;  Trundle  v.  Edwards,  4  Sneed.  574; 
and  see  Berkey  ?•.  Judd,  22  Minn.  ivOO. 

22  Trundle  r.  Edwards,  4  Sneed,  574  ;  Burgovno  v.  Ohio  L.  Ins.  Co. 
6  Ohio  St.  5S7. 

23  Fagely  v.  Bellas,  17  Pa.  St.  67  ;  Hicks  v.  Wyatt,  23  Ark.  56. 

§  90.  Corporations,  suits  by.  — A  corporation  created  by 
and  doing  business  witliin  a  State  is  deemed  to  be  an  inliabitaat 
of  that  State,  and  is  capable  of  being  treated  as  a  citizen  for  all 
purposes  of  suing  and  being  sued.^    As  a  general  rule  a  foreign 


259  CORPOBATIONS.  ^  90 

corporation  ^Yill  be  permitted  to  prosecute  an  action  in  all 
cases  when  the  corporators  would  Ix)  permitted  to  do  ho.^  A 
corporation  like  a  person  is  recognized  in  law  only  by  it*  name 
and  in  its  capacity  as  a  corporation,  and  by  its  name  it  nnmt 
sue  and  be  sued.^  The  position  of  pi-iest  seems  to  be  more 
analogous  to  that  of  a  sole  corporation  in  England  ihan  to 
that  of  a  naked  agent,  and  the  power  to  sue  id  an  inseparable 
incident  to  such  coii^oration.-'  An  action  can  Ix;  maintained  by 
a  corporation  legally  existing  for  an  invasion  of  their  rights  in 
real  estate  in-  the  same  manner  as  it  could  be  done  by  an  indi- 
vidual who  should  be  the  owner. »  The  supei-intendents  of  the 
poor -are  a  corporation,  and  may  maintain  an  action  cither  in 
their  corporate  name  or  in  their  individual  names,  with  the 
addition  of  their  name  of  office."'  "When  the  name  of  a  cor- 
poraiion  has  been  changed  it  may  sue  in  its  new  name  to  en- 
force former  contracts,  the  proper  averments  being  made  in  the 
complaint  showing  the  facts.'  When  there  are  two  statutes  in 
force  under  which  a  religious  corporation  could  exist,  it  will 
be  presumed  the  corporation  can  sue  in  the  name  adopttd  until 
the  matter  is  put  in  issue  by  proper  plea  for  that  i)uriK>se.* 
The  fact  of  the  corporate  existence  or  power  to  sue  is  nut  put 
in  issue  by  a  general  denial  iu  the  answei-,  but  must  be  raised 
by  demurrer  or  special  denial  in  the  nature  of  a  pk-a  in  alwite- 
ment.'-"  An  action  brought  by  the  de  facto  officers  of  a  corp.ira- 
tion  cannot  be  defeated  by  showing  that  such  officers  Avcro  not 
legally  elected,  particularly  if  there  are  no  other  officers  claim- 
ing .to  represent  the  corporation. i"  The  coqwrate  name  is  a 
necessary  element  of  the  corporation's  existence ;  a  court  of 
equity  will  not  refuse  to  enjoin  the  wrongful  appropriation  of 
it  until  the  rights  to  its  use  have  been  established  at  l.iw.«> 
"When  a  court  of  chanceiy  found  that  a  corporation  plaintiff 
had  no  legal  existence  it  properly  allowed  an  amendment  ixr- 
mitting  the  suit  to  be  continued  in  the  name  of  tluTC  stock- 
holders, w^ho  owned  all  the  stock,  as  tho  real  ixu-tics  in 
interest. 12  Two  corporations  may  unite  iu  an  action  of  as- 
sumpsit to  recover  money  deposited  iu  their  JL*int  names." 
The  right  to  sue  upon  a  note  executed  exclusively  for  tho 


§  90  WHO   MAY  SUE  AND  BE  SUED.  2G0 

benefit  of  a  bank  vests  in  the  bank,  and  the  indorsement  of  its 
cashior,  to  whom  as  cashier  the  note  is  made  payable,  is  not 
neccssaiy.i*  When  a  corporation  to  Avhom  a  subscription  runs 
has  incurred  obhgations  on  the  faith  of  the  subscription,  and 
complied  with  its  conditions,  it  may  enforce  the  same  by  suit.^^ 
A  corporation  may  maintain  a  bill  of  interpleader  against  two 
opposing  claimants  to  a  dividend  due  on  certain  shares  of  its 
capital  stock  originally  held  in  trust  for  one  of  them  by  a  third 
person,  who  fraudulently  transferred  them  indirectly  to  the 
other.  1''  A  corporation  in  the  possession  of  lands  may  main- 
tain an  action  of  trespass  against  a  stranger ;  ^^  so  it  may  main- 
tain an  action  for  conspiracy  by  a  portion  of  its  director*  and 
other  persons  to  destroy  its  business. ^^  When  an  insurance 
company  has  paid  a  loss  sustained  by  the  wrongful  acts  of  a 
third  person,  it  may  maintain  an  action  against  the  wrong-doer 
to  recover  the  amount  paid,  and  this  Avithout  an  assignment 
from  the  assured  of  his  claim  against  the  person  primarily 
liable. ^^  To  a  bill  in  equity  by  a  creditor  of  a  corporation 
against  its  officers  and  stochholders,  who  have  divided  its  prop- 
erty among  themselves  for  the  purpose  of  evading  its  liabilities, 
the  corporation  should  bo  a  party.  ^"  When  a  receiver  has  been 
appointed  to  wind  up  the  affairs  of  a  corporation  by  a  decree 
which  directs  that  "he  shall  prosecute  and  defend  all  suits  at 
law  that  may  now  be  pending,  or  that  may  hereafter  be  insti- 
tuted, in  which  said  corporation  shall  be  a  party";  held,  that 
in  a  cause  of  action  that  arose  before  his  appointment  his 
authority  to  appear  and  sue  should  be  made  to  appear.21  When 
the  legislature  extends  the  life  of  a  corporation  for  a  limited 
period  for  the  purpose  of  collecting  its  debts,  and  authorizes 
its  trustees  to  institute  actions  therefor  in  its  name  during 
such  period,  and  to  prosecute  the  same  to  final  judgment ; 
held,  such  actions  so  commenced  might  be  prosecuted  after  the 
time  had  expired. ^'•^ 

1  Louisville  Ry.  Co.  v.  Letson,  2  How.  550  ;  generallv  Marshall  v. 
B.  tt  ().  Kv.  Co.  16  How.  325;  Shelby  v.  Hoffman,  7  Ohio  St.  453; 
Society  v.  Variioy,  'A  X.  H.  377. 

2  Imp.  Sz  Exp.  Co.  of  Ga.  v.  Locke,  50  Ala.  333  ;  United  States  v. 
Ins.  Co.  22  Wall.  100  ;  generally  Lewis  v.  Bank  of  Kentucky,  12  Ohio, 


261  conpoEATioxs.  ^  90 

146  ;  Stetson  v.  Cy.  Bk.  of  New  Orleans.  2  Ohio  .St.  1T2  :  Dinrtf^r  O-'t 

lus.  Co.  r.  Sawyer,  44  Wis.  :iS8  ;  Williams  r.  ('resw.-n.  v   "• 

Bank  uf  Krhvardsville  v.  Simpson,  1  Mo.  1*4  ;  Am.  Mu:.  ' 
O'.veu,  lo  Gray,  493  ;  Portsmouth  L.  Co.  v.  Wat.s<»ii.  lo  M 
ciety  r.  Varney,  .54  N.  H.  -ill ;  Southern  L.  Ins.  Co.  r.  l!i.  .   . 
431 ;  see  Leasure  i'.  Union  Mat.  L.  Ins.  Co.  91  Pa.  .St.  ■iJJ, 

3  Curtiss  V.  Murry,  26  Cal.  G34  ;  Winona  &  St.  P.  Rv.  Co.  r.  St.  P 
<t  S.  C.  R.  Co.  23  Minn.  3G0  ;  s-e  Ins.  Oil  Tank  Cd.  v.  Sx-'or . :  ;  1. 1    ^  , 
9.50;  Brittaiii  v.  Xcwland,2  Dov.  &  B.  o6l ;  Trnstffs  ct  •.  " 
Hoessli,  13  Wis.. 3-53  ;  compare  Van  Keuren  v.  Johnstu-i. 

see  also  McConnell  v.  Gardner,  1  Morris,  273  ;  Jones  ;•.  \'.   : 
6S0. 

4  Santillan  v.  Moses,  1  Cal.  94 ;  compare  Cox  r.  Walker,  26  Mo. 
512  ;  McConnell  v.  Gardner.  1  Morris,  273. 

5  Cox  V.  Walker,  2G  Me.  .512  ;  generally  Colquitt  r.  Howard,  11  Ga. 
532  ;  Trustees  etc.  of  Xew  Elm  i'.  Hoessli,  13  Wis.  ;>53. 

6  Van  Keuren  t- .  Johnston,  3  Denlo,  183  ;  Alger. r.  Miller,  .53  Barb. 
183;;  Alger  v.  Miller,  56  Barb.  223. 

7  Readv  v.  Mavor  &  Aldermen,  6  Ala.  SS^l ;  see  Beene  v.  C.  it  M. 
Ey.  Co.  3  Ala.  660  ;  Dismal  S.  L.  Co.  v.  Macanlay,  7  Gratt.47i5. 

8  Fireman's  F.  I.  Co.  r.  Con.  RodSholom,  8D  111.  531  ;  compare 
Tunstall  v.  Wormley,  54  Tex.  4S0. 

9  Xatl.  L.  Ins.  Co.  v.  Robinson,  8  Neb.  455;  Insurance  Co.  r. 
Moore,  55  X.  H.  53;  Lewis  v.  Bank  of  Kentucky.  12  Ohio,  150;  see 
Crump  V.  U.  S.  Mining  Co.  7  Gratt.  3.53;  Railroad  Co.  r.  Sherman,  8 
R.  I.  564  ;  United  States  v.  Ins.  Co.  22  Wall.  100. 

10  Mech's  Natl.  Bk.  etc.  v.  Burnet  Mfg.  Co.  .?2  N.  J.  '        - 
see  United  States  v.  Insurance  Co.  22  Wall.  IW  ;  Cliari- 
Baldwin,  1  3Iet.  363 ;  Green  v.  Cady,  9  Wend.  415  ;  Louis;;.. 

V.  Flood,  3  Martin  N.  S.  S42. 

11  Nowby  V.  Oregon  Cent.  By.  Co.  1  Deady,  016. 

12  Mining  &  G.  Co.  v.  Windham  Co.  Bk.  44  Vt.  407  ;  compare  Junes 
V.  Watson,  G3  Ga.  6o0. 

13  N.  Y.  &  S.  Canal  Co.  v.  Fulton  Bank,  7  Wend.  414. 

14  Lacev  v.  Cent.  Nat.  Bank  of  Omaha,  4  Neb.  1S3 ;  p.'ii.ndlv 
Wash.  Mut.  F.  Ins.  Co.  v.  St.  Mary's  Sem.  52  Mo.  4so  ;  (;.irl  . 
Revnolds,20Me.  46  ;  Warren  Academy  i'.Sterrett,  15  Ml.  443  :  I 

r.  Parks,  10  Me.  442  ;  Commercial  Bank  v.  French.  21  Pick.  4--  : 
nev  V.  Newcomb,  9  Cush.  50  ;  Taunton  ».t  So.  Boston  T.  «'.».  ' .  '•' 
ing,  10  Mass.  .3:?1  ;  Eastern  Rv.  Co.  ?•.  Benedict,  5  (iray.  .5  .:  ;  .\; 
Mut.  F.  Ins.  Co.  r.  Young, :«  N.  H.  45:? ;  and  see  McBroom<'  -.  '     r;.. 
of  Lebanon,  31  Ind.  26S ;  Gilmore  v.  Pope,  5  Mass.  403 ;  Wils..;.  ; . 
Ryan,  7  Marsh.  J.  J.  a50. 

15  Fremont  F.  &  B.  Co.  v.  Fuhrman,  8  Neb.  90  :  generally  Lotital- 
a:ia  Col.  i-.  KeUer,  10  La.  164 ;  D.  &.  ;M.  Plank  R.  Co.  r.  Millerd.  3 
Mich.  97. 

13  Salsburv  Mills  v.  Townsend,  lOD  Mass.  121  ;  generally  Sli.aw  r. 
Coster,  8  Paige,  345  ;  Atkinson  r.  Maiiks,  1  Cowen,  70.5. 

17  Railroad  v.  Partlow,  14  Rich.  213  ;  First  Parish  etc.  v.  Smith,  H 
Pick.  m. 

13  Talbot  V.  Scripps,  31  Mich.  260 ;  generally  Shultz  v.  Christmas,  8 
Mo.  App.  3^i:). 

19  Swarthout  v.  Chi.  &  N.  W.  Ry.  Co.  4:)  Wis.  62S ;  Hart  f.  ^^■.-»:- 
ern  Rv.  Co.  13  Met.  103  ;  Monmouth  Co.  F.  Ins.  Co.  r.  II.  Oi  <  .  •  ^. 
21  N.  j".  Eq.  115 ;  Conn.  F.  Ins.  Co.  v.  Railroad,  73  N.  Y.  3in». 


2  91  WHO   MAY   SUE   AND  BE   SUED.  262 

20  Deerfield  v.  Nims,  110  Muss.  115. 

21  Haves  v.  Brotzman,  43  Md.  52-1  ;  and  compare  Piscataqna  F.  & 
M.  Ins.  Co.  V.  Hill,  6J  Me.  182. 

22  Franklin  Bank  ?'.  Cooper.  36  Me.  1!;0 ;  generally  State  ?-.  Bank 
of  Washington,  13  Ark.  557  ;  Jacques  v.  Kopman,  6  La.  An.  512. 

g  91.  Corporations,  suits  against.  — When  a  corporation 
makes  a  contract  in  a  State  otlier  than  that  in  which  it  was 
chartered,  it  thereby  submits  itself  to  the  jurisdiction  of  such 
•  foreign  sovereignty  so  far  as  to  be  liable  to  a  suit  therein  in 
regard  to  that  contract,  when  summoned  according  to  the  laws 
of  the  State. 1  When  the  authority  to  serve  process  upon  a 
foreign  corporation  depends  upon  the  fact  whether  it  is  doirg 
business  within  the  district,  an  established  place  of  business  h 
contemi^lated  by  the  statute,  with  agents  or  persons  employed 
to  conduct  it.'-*  Unless  jurisdiction  is  otherwise  expressly  given 
by  statuts,  a  foreign  corporation  can  only  be  sued  by  an  attach- 
ment of  its  property.'^  An  attachment  of  an  article  of  trifling 
value  is  not  within  the  meaning  of  the  law,  there  must  be  a 
substantial  attachment,  one  from  which  the  creditor  may  l»ave 
some  chance  of  benefit.^  Unless  exi)ressly  authorized  by  stat- 
ute, stockholders  are  not  allowed  to  plead  and  defend  for  the 
corporation  when  the  suit  is  against  it  and  they  are  not  parties 
to  the  record.o  A  corporation  is  known  in  law  only  by  its  cor- 
porate name,  and  by  it  it  must  sue  and  be  sued.^  If  a  corpora- 
tion be  sued  by  a  name  varying  only  in  words  and  syllables  and 
not  in  substance  from  the  true  name,  the  misnomer  must  be 
pleaded  in  abatement  or  it  will  be  waived ;  "^  but  if  the  variance 
bo  material  the  suit  cannot  be  regarded  as  against  the  corpora- 
tion.** When  the  name  of  the  corporation  has  been  changed  in 
the  manner  provided  by  law,  but  the  corporation  exists  and 
continues  the  same  general  business  and  differs  from  the  old 
corporation  in  name  only,  an  action  against  the  corporation  is 
bi'ought  properly  against  it  by  its  new  name,  the  identity  of 
the  corporate  body  under  the  two  different  names  being 
alleged.^  When  a  change  occurs  in  the  officers  of  a  corporation 
between  the  time  it  is  sued  and  the  time  its  answer  is  filed,  the 
latter  officers  are  the  proper  persons  to  vindicate  the  rights  of 


233  CORPORATIONS.  /;  91 

tlie  corporation.^0  A  corporation  is  not  lialjL-  u>l-  iiw  ;icts  of 
its  officers  unless  done  in  pursuance  of  some  object  enibracetl 
by  its  charter,  or  of  some  power  conferred  upon  it  by  law."  If 
tlie  injury  complained  of  is  one  that  is  no  greater  to  the  plaint- 
iif  than  to  the  public  at  large  he  cannot  recover,  the  remedy  to 
obtain  the  redress  is  with  the  public. '2  A  bill  in  equity  to 
resh-ain  the  misappropriation  of  a  fund  held  by  a  corporation 
in  trust  cannot  be  maintained  against  the  trustees  apixunttd 
by  the  corporation  to  hoi  1  and  manage  the  fund  without  mak- 
ing the  corporation  a  party  to  the  bill.'^  An  action  will  not  lie 
by  one  claiming  to  be  a  stockholder,  in  the  first  instance, 
against  other  stockholders  who  are  recognized  as  such  and  liavo 
received  all  the  dividends,  to  recover  his  alleged  share;  it 
seems  his  remedy  is  against  the  corporation. ^^  Unless  the  act 
of  incorporation  expressly  prescribes  the  contraiy,  the  autlior- 
izsd  agents  of  a  corporation  may,  within  the  scope  of  their 
authority,  bind  it  by  simple  contracts  or  contracts  under  seal ;  '* 
ix"  deposits  be  made  in  a  bank  on  two  separate  accounts,  a  juint 
action  cannot  be  maintained  therefor,  even  though  no  olijection 
is  made  by  the  defendant.^''  The  holder  of  a  bank  check  cannot 
sue  the  bank  for  refusing  payment,  in  absence  of  proof  that  it 
was  accepted  by  the  bank  or  charged  against  the  drawer.'*  If 
paid  by  the  bank  upon  a  forged  indorsement,  it  must  Ix-ar  tho 
loss  and  cannot  charge  the  payment  to  the  depositor ;  ''^  and  so 
when  a  bank  issues  a  certificate  of  deposit  payable  on  its  return 
properly  indorsed,  it  is  liable  thereon  to  a  bona  fide  holder  to 
whom  it  was  transferred  seven  years  after  issue,  even  though  it 
had  been  paid  to  tho  original  holder.'*'  When  materials  are 
furnished  the  trustees  of  a  church  at  their  request  for  the  pur- 
pose of  building  a  meeting  house,  and  are  so  applied,  the 
corporation  is  liable  for  the  price  even  though  the  tnisti-ca 
supposed  the  materials  furnished  as  a  donation.-"^  A  coi-jiora- 
tion  may  be  sued  in  any  form  appropriate  to  the  cause  of  action  ; 
its  liabiliaes  do  not  differ  in  this  respect  from  those  nf  an 
individual. '-^i  A  corporation  can  act  in  no  way  but  by  its 
officers,  agents,  and  servants,  and  when  such  persons  act  within 
the  scope  of  their  employment  it  is  the  act  of  tho  corporation, 


§  91  WHO  HAY  SUE  AND  BE  SUED.  264 

and  their  negligence  is  the  negligence  of  the  corporation. 22  It 
is  llahlo  for  torts  in  the  same  manner  and  to  the  same  extent 
as  natural  persons ;  ^^  but  when  an  injury  is  committed  by  an 
employee  wilfully  and  of  his  own  malice,  and  not  in  the  cour&e 
of  his  employment,  the  corporation  is  not  liable  ;  '^^  othei'Avise 
if  acting  within  the  scope  of  their  employment ;  ^5  thus  a  cor- 
poration may  be  liable  to  a  suit  for  a  malicious  prosecution  and 
false  imprisonment. 2^  It  is  not  the  province  of  a  court  to 
superintend  the  cm-rent  business  of  a  corporation  with  a  view 
to  measure  the  degree  of  industry,  skill,  and  shrewdness  to  be 
required  of  or  exercised  by  its  officers ;  and  as  a  consequence  a 
court  of  equity  will  not  interfere  to  review  or  correct  their 
proceedings  on  the  ground  of  fraud  or  mismanagement  unless 
there  is  cause  for  the  absolute  displacement  of  the  officer  com- 
plained of,  or  for  a  final  winding  up  of  the  affairs  of  the  cor- 
poration. 2'  A  railroad  company  may  be  liable  on  proper 
averments  for  damages  resulting  from  misleading  announce- 
ments, whereby  passengers  are  led  to  attempt  to  board  the 
wrong  train  ;  ^s  but  when  a  wrong  is  founded  upon  a  breach  of 
contract,  the  plaintiff  suing  in  respect  thereof  must  be  a  party 
or  privy  to  the  contract,  else  he  fails  to  show  a  wrong  done  to 
himself  as  against  the  defendant. ■^'*  "Whenever  it  is  sought  to 
impugn  the  validity  of  a  corporation  that  exists  under  the  form 
of  lavr,  the  remedy  is  by  quo  warrarito  or  remedy  in  the  nature 
thereof  instituted  by  the  attorney-general ;  '^^  the  proceeding 
must  bo  against  the  corporation  itself,  and  not  merely  against 
individuals  composing  it.^^^  When  a  corporation  is  dissolved  a 
pending  action  is  thereby  abated  unless  the  action  be  contniued 
by  order  of  the  court  in  the  manner  provided  by  law.^^  When 
a  corporation  has  gone  into  liquidation  and  closed  up  its 
business,  leaving  its  assets  and  property  in  the  hands  of  its 
former  directors  for  three  years  without  any  accounting  with 
the  stockholders  during  that  time,  an  action  will  lie  by  a  stock- 
holder against  the  directors  individually,  charging  an  abuse 
and  neglect  of  their  trust,  and  a  receiver  will  be  appointed  upon 
an  ex  parte  application.^^  After  receivers  of  an  insurance 
company  established  by  the  laws  of  this  State  (Massachusetts) 


^'••J  CORPORATIONS.  J   91 

have  been  appointed  and  injunction  issued  under  the  provisions 
of  the  statute,  neither  the  corporation  nor  the  receiver  can  Ix? 
charged  by  trustee  process. =^'  The  appointment  of  a  rt-coiver 
under  the  national  bank  act  does  not  absolutely  dissolve  the 
corporation  ;  and  an  action  to  establish  the  claim  of  a  creditor 
which  has  been  rejected  by  the  receiver  may  bo  maintained. 
the  bank  and  the  receiver  being  made  defendants. ^^ 

1  2s at.  Cond.  Milk  Co.  v.  Branrlenburgh,  40  X.  J.  L.  IV2  ;  ppiif  rally 
Williams  V.  Fire  Ins.  Co.  2)  Me.  407  ;  Martin  v.  Branch  Hunk  of  Ala. 
14  La.  417;  Baltimore  &  O.  Ry.  Co.  v.  Gallahuc,  12  (iratt.  (>•>•> :  I'alrucr 
r.  Phoenix  Mut.  L.  Ins.  Co.  84  X.  Y.  G7 ;  W.  I'.  Telegraph  Co.  v.  Pl-jaa- 
ants,  43  Ala.  6^5 ;  see  Weight  v.  L.  L.  <fe  (;.  Ins.  Co. .-»  La.  An.  1133 ;  see 
also  Lafayette  Ins.  Co.  v.  French,  IS  How.  403. 

2  Dallas  v.  Railroad  Co.  2  McAr.  148  ;  generally  Williston  v.  Mich. 
.Southern  &  X.  I.  Ry.  13  Allen,  406;  Larkin  v.  Wilson,  Kr!  Moss. 
120. 

3  Andrews  v.  Mich.  Cent.  Ry.  Co.  99  Ma.ss.  .>15  ;  and  soe  Ocean  Ins. 
Co.  ?■.  Portsmouth  Ry.  Co.  3  Met.  422;  generally  Wichston  r.  Mich. 
Southern  &  X'.  I.  13  Allen,  40S  ;  Larkin  v.  Wilson,  10(5  Mas.;.  12-i ;  fcilllo- 
way  V.  Columbia  Ins.  Co.  8  Gray,  203, 

4  Barnes  r.  Mobile  A  X.  W.  Ry.  Co.  12  Hun,  VIZ ;  generally  .SIllo- 
way  V.  Columbia  Ins.  Co.  8  Graj-,  20-3. 

5  Blackman  v.  Cent.  Rj'.  &  B.  Co.  58  Ga.  190. 

6  Curtiss  V.  Murray,  23  Cal.  634  ;  and  see  Campbell  i-.  linink,  2.> 
III.  226. 

7  Burnham  r.  Bank,  5  X.  H.  443 ;  generally  Medway  Cotton 
Mii-.uif.  Co.  V.  Adams,  10  Mass.  362  ;  Bnllard  r.  Xantucket  Bank.  5 
Mass.  100 ;  Wilson  i\  Baker,  52  Iowa,  427 ;  Lafayette  Ins.  Co.  r. 
Frsncli,  13  How.  403  ;  Short  v.  Raub,  81  111.  510. 

8  Bank  of  Utica  r.  Smalley.  2  Cowen,  730  ;  Burnham  v.  Bank,  ^ 
X.  II.  443  ;  compare  Lafayette  Ins.  Co.  v.  French.  13  How.  4(h  :  ait'l 
R-oo  Proprs.  of  Sunapee  v.  Eastman,  32  X.  II.  4?2  ;  Western  U.  Tel.  Co. 
V.  nyser,  2  Colo.  155  ;  King  v.  Rand  let  t,  33  Cal.  320. 

9  Gould  V.  Sub.  Dist.  Xo.  3  etc.  7  Minn.  2D  ;  generally  Morris  v.  St. 
Paul  &  Chic.  Ry.  Co.  19  Minn.  5.33  ;  Deane  v.  La  Mott?  Lead  Co.  .>:•  Mo. 
.523  ;  Eaton  «fe  H.  Ry.  Co.  v.  Hunt,  20  Ind.  4G1 ;  Banksdalj  v.  Finney, 
14  Gratt.  3.33. 

13    Mechanics'  Xat.  Bank  v.  Burnet  Manuf.  Co.  32  X.  J.  Eq.  2:«. 

11  Ricord  v.  C.  P.  Ry.  Co.  15  Xev.  176. 

12  Cum.  Valley  Ry.  Appeal,  62  Pa.  St.  227 ;  Eigelow  v.  Hartford 
r;:i;lg3  Co.  14  Conn.  573. 

13  Tibballs  v.  Bidwell,  1  Gray.  393. 

14  Peckhani  v.  Van  Wagenen,  S^i  X.  Y.  43. 

15  McCullough  V.  Talladega  Ins.  Co.  43  Ala.  .'TTS:  generally  Com. 
Mut.  M.  Ir.s.  Co.  V.  Unioii  M.  Ins.  Co.  19  How.  .318  ;  Bank  of  Columbia 
V.  Patterson,  7  Cranch,  :Xt2. 

16  Ellisou  V.  Xew  Bedford  Sav.  Bank,  i:»  Mass.  4?. 

17  Bank  of  the  Republic  r.  Millard  10  Wall.  l.V> ;  Carr  f.  XaL 
S?curitv  Bank.  107  Mass.  4S  ;  Loyd  v.  McCRffroy,  46  Pit  .^t.  414  ;  i'irsl 
X'at.  Bank  of  Wash.  r.  Whitman,  04  U.  S.  *i3. 

Parties  —  23 


g  03  \7no  3:ay  sue  axd  be  sued.  266 

ir.    Thompson  v.  Bank  of  B.  Xo.  America,  S2  N.  Y.  8  ;  First  Xat. 
r.unk  of  Wash.  v.  Whitman,  94  U.  S.  S4ii. 
10    :,'at.  Bank  etc.  v.  Wash.  Co.  Is  at.  Banlc,  5  TTun,  GOo. 

20  T::I1 7-.  Trnstees  ct?.  To  X.  C.  427  ;  goncriilly  Pepper  r.  Harris,  73 
N.  C.  7:5 ;  and  see  East  Lun.  Asy.  v.  Garrett,  27  Gratt.  174. 

21  Winslow  V.  Commrs.  G4  N.  C.  819. 

22  Hopkins  v.  Atlantic  &  St.  L.  Ry.  .36  N.  H.  17  ;  generally  Chase 
V.  Am.  steamboat  Co.  10  R.  I.  86  ;  Gould  v.  Sub.  Ltist.  No.  3  etc.  7 
3Ii;Hi.  20 1 :  st'i'  S.  R.  d-  D.  Rv.  Co.  r.  Webb,  49  Ala.  241  ;  Kline  v.  C.  P. 
Rv.  Co.  -47  C.  1.  40:^ ;  Kain  v.  Smith,  80  N.  Y.  467  ;  United  Society  of 
Shakers  v.  Underwood,  9  Bush,  614  ;  Smith  v.  Poor,  40  Me.  421. 

23  Y.'.  U.  Tol.  Co.  V.  Eyser,  2  Colo.  161  ;  Hopkins  v.  Railroad  Co.  S6 
N.  II.  17  ;  Miller  v.  B.  &  M.  Rv.  Co.  8  :Xeb.  22;] ;  Chappell  v.  S.  &  N. 
Ala.  Ry.  Co.  61  Ala.  529  ;  Railroad  Co.  v.  Keary,  3  Ohio  St.  204. 

24  Miller  V.  B.  &  M.  Ry.  Co.  8  Keb.  223  ;  compare  Brokaw  v.  X.  J. 
R.  &  T.  Co.  S2  X.  J.  L.  331 ;  X.  O.  J.  &  G.  N.  Ry.  Co.  v.  Plarrison,  48 
Miss.  113. 

25  Brokaw  v.  X.  J.  R.  &  T.  Co.  32  X.  J.  L.  321 ;  Kline  v.  C.  P.  Ry. 
Co.  37  Cal.  403. 

26  Carter  v.  Howe  M.  Co.  51  Md.  292  ;  generally  Goodspeed  v.  E. 
Haddam  Bank,  22  Conn.  5:^  ;  P.  W.  &  B.  Ry.  Co.  ?-.  Qnigley,  21  How. 
202  ;  Yance  v.  Erie  Ry.  Co.  32  X.  J.  L.  334  ;  but  see  Owsley  v.  ^Y.  P. 

"Ry.  Co.  37  Ala.  .562. 

27  Hedges  v.  Paquett,  3  Oreg.  SO  ;  and  see  Smith  v.  Poor,  40  Me.  421. 
23    Flint  &  P.  21.  Ry.  Co.  v.  Stark,  38  Mich.  710. 

23    Railroad  Co.  r.  Railroad  Co.  9  S.  C.  328. 

30  Xat.  Docks  II v.  Co.  v.  Cent.  Ry.  Co.  o2  X.  J.  Eq.  733  ;  State  v.  R. 
&  11.  T.  C0.211;.  J.'L.  10. 

31  State  V.  Taylor,  2o  Ohio  St.  2S2. 

32  McCullongh  v.  Xorwood,  r)S  X.  Y.  ."P.n  ;  Sturges  v.  Vanderbilt,  73 
X.  Y.  :;^. 

33  V/arren  v.  Fake,  49  How.  Pr.  4.''.0. 

'M  Columbian  B.  Co.  ?'.  De  GolVv^r,  11.">Mass.  6D  ;  and  soe  Common w. 
V.  ir.  &  L.  Ins.  Co.  no  Mass.  156.  " 

35  Pahquioque  Bank  v.  Bethel  Bank,  36  Conn.  ^3  ;  Banlc  of  Bethel 
V.  Pahqr.ioquo  Bank,  14  Y.'all.  .383 ;  Green  r.  Walkill  Xat.  Bank,  7 
Hun,  63. 

§  92.    TJnincorporatad  associations,  suits  by  and  against.  — 

No  association  of  persons  can  appear  in  court  as  a  corporation, 
unless  organized'as  such  in  the  manner  provided  by  law;  until  so 
organized  it  must  sue  in  the  individual  name  of  its  members  ;  ^ 
but  if  the  members  arc  very  numerous  a  portion  of  them  having 
a  common  interest  may  sue  (in  equity)  on  behalf  of  themselves, 
and  others  having  a  like  interest  as  part  of  the  same  society,  for 
purposes  common  to  all,  and  beneficial  to  all. 2  "When  the  arti- 
cles of  the  association  provide  that  all  the  property  of  the  com- 
pany shall  be  vested  in  trustees  thereafer  to  bs  elected,  and 


267  STOCKHOLDERS.  g  93 

that  subscribers  should  pay  to  such  trustees  the  amount  of  tutir 
:;fspective  subscriptions,  it  was  held  that  the  amount  cunld  bo 
r^overcdin  a  suit  brought  i:i  the  names  of  the  trustees  so 
elected.^  If  one  member  pay  the  whole  of  a  dobt  contracted  for 
a  common  purpose,  he  may  sue  each  of  the  others  for  Lij 
aliquot  share  of  the  debt ;  if  some  arc  insolvent  he  may  proceed 
in  equity  to  compel  each  to  pay  their  just  proportion.*  Plaint- 
IfEi  associated  themselves  together  as  the  "Daubury  Comet 
Band  ";  they  adopted  and  subscribed  a  by-law  providing  "  that  if 
any  member  shall  leave  the  band,  he  liavcs  all  his  iatereitwith 
the  band;"  defendant  voluntarily  left  the  association,  taking 
with  him  his  instrument  which  he  refused  to  surrender  upon 
demand,  held  he  was  liable  in  trover.^  When  pending  a  suit  ly 
unincorporateel  association,  it  becomes  incorporated  under  a 
elifferent  name  ;  an  amendment  substituting  the  corporate  name 
will  not  be  allowed.*^  An  unincorporated  association  should  not 
bo  sued  by  its  name ;  if  its  members  are  liable  they  stand  03 
other  joint  promisors  or  partners.^ 

1  The  W.  A.  Bank  v.  Converse,  2D  La.  An.  3C3  ;  pcnorally  Lollor  r. 
Monton,  3  La.  An.  .541  ;  ilcKenzie  v.  Bd.  of  School  Trs.  ri  liul.  luS: 
Mears  v.  Moulton,  30  Md.  145  :  Jones  v.  Watson,  M  (Jii.  Rso  ;  romparo 
Tibbetts  v.  Blood,  21  Barb.  6.>4  ;  Trustees  M.  E.  Church  r.  -Vdanis.  -I 
Oreg.  76  ;  Chickerming  Lodge  No.  55  I.  O.  O.  F.  v.  McDoiiuld.  16  WK 
112  ;  and  see  Tumstall  v.  Wormley,  54  Tex.  4%  ;  Night iiijrali"  r.  Bar- 
nev.  4  G.  Greene  ICK) ;  Marsh  v.  Astorix  Lodge  eto.  27  111.  424  ;  McCou- 
neh  f.  Gardner,  Morris,  272  ;  Cross  v.  Jack.son,  5  Hill,  47n. 

2  Beatty  v.  Kurtz,  2  Peters,  5^4 ;  Tumstall  v.  Wormloy,  .M  Tcjt. 
4S1  ;  Birmingham  v.  Gullagh-^r,  112  Mass.  r'2  ;  Snow  r.  Whi'oU'r.  113 
Mass.  1S4  ;  Mann  r.  Butler,  2  Barb.  Ch.  367  ;  sco  Alhird  r.  Orleaua 
Nav.  Co.  14  La.  (O.  S.)  23, 

3  Cross  V.  Jackson,  5  Hill,  479 :  see  Warren  v.  Steurus,  10  Wck.  77  ; 
ganeraiiv  see  Poits  v.  Kamp,  12  Rob.  (La.  i  G4G. 

4  Parker  v.  Ellis,  2  Sandf.  225. 

5  Band  v.  Bean,  ^1  N.  H.  525  ;  and  see  Morley  r.  French,  2  C"u»b. 
132. 

0    INIarsh  R.  Lodge  v.  Sup's  of  Brooks,  (U  Me.  5.S6. 
7    Peacock  r.  Usry,  .52  Ga.  35! ;  see  Holt  v.  Blake,  l'  X.^  <v  :  "SU-- 
Cartee  v.  Chambers,  6  Wend.  (150. 

§  G3.  stockholders,  suits  by  and  against.  —  As  a  rule  a 
stockholeler  canuot  maintain  an  action  against  the  directors 
or  other  agents  of  the  corporation  for  a  misuse  or  abuse  of 
their  official  powers,  by  which  the  corporate  proix^rty  has  been 


g  93  WHO  MAY   SUE   AND   BE   SUED.  2C0 

wastccl,  Diich  suit  should  be  brought  by  the  corporaticn  ;  ^  uiilsss 
upon  proper  domand  the  corporation  refuse  to  prosecute,  i:i 
which  case  the  stockholder  may  sue  for  himself,  and  all  othcrLi 
similarly  situated,  making  the  corporation  a  party  defendant.^ 
When  a  corpoi'ation  acts  within  the  scope  and  in  obcdicrco  to 
the  provisions  of  its  constitution,  the  will  of  a  majority  duly 
expressed  at  a  bgally  constituted  meeting  must  govern,  yet 
beyond  the  limits  of  the  act  of  incorporation  the  will  of  the 
majority  cannot  make  the  act  valid,  and  a  single  stockholder 
may  maintain  a  suit  to  restrain  such  acts.^  An  action  for  the 
conversion  of  stock  by  a  corporation  will  not  lie  in  favor  of  a 
person  not  a  stockholder.*  To  entitle  a  person  to  recover  back 
money  advanced  a  corporation  for  shares  of  its  capital  stock, 
upon  the  groun  1  of  a  failure  to  issue  it  according  to  agreement, 
he  must  rescind  the  contract  and  demand  the  money  before  suit.^ 
"When  tenants  in  common  of  lands  incorporate  for  the  purpose 
of  selling  and  improving  the  same,  an  action  to  restrain  trcs- 
l^asses  thereon  must  be  brought  in  the  name  of  the  corporation, 
and  not  in  that  of  one  co-tenant.*^  A  stockholder  of  a  corpora- 
tion has  the  right  to  know  how  the  business  of  the  company  is 
conducted,  if  his  rights  are  not  restricted  by  the  charter,  or 
rules  and  by-laws  ;  he  has  a  right  to  inspect  its  books,  and  if 
the  right  is  denied  upon  proper  application  he  may  enforce  it 
hj  mandamus ;  ^  in  like  manner  he  may  compel  a  publication 
of  "statements  and  reports"  required  by  statute.**  A  stock- 
holder of  a  defunct  corporation  has  such  an  interest  as  ^vill 
enable  him  to  defend  a  suit  brought  to  foreclose  a  mortgage 
alleged  to  have  been  executed  by  the  corporation  in  its  lifetime.^ 
If  the  directors  refuse  to  appear  and  defend  a  bill  filed  against 
them  for  the  fraudulent  purpose  of  sacrificing  the  interests  of 
the  stockholders,  the  court  in  its  discretion  will  permit  a  stock- 
holder to  become  a  party  defendant  for  the  purpose  of  jDrotect- 
ing  his  interests  against  unfounded  or  illegal  claims,  he  may 
defend  for  himself  and  all  other  stockholders  who  may  desire 
to  join  with  him  in  the  defensc^^*  A  creditor's  bill  to  enforce 
the  liability  of  the  officers  or  stockholders  of  a  corporation  for 
its  debts  (statute)  should  be  against  the  corporation ; "  the  bill 


269  STOCKHOLDEES.  g  98 

should  be  brought  on  behalf  of  plaintiff  and  all  other  croditom. 
the  stockholders  may  also  be  joined  as  defendants. '*  In  a  pro- 
ceeding by  the  receivers  of  a  bank  to  compel  stockholders  to  jmy 
up  their  stock,  defendants  will  not  be  permitted  to  defend  upon 
the  ground  that  they  -were  guilty  of  a  violation  of  law  in  assum- 
ing to  do  business  under  the  act  of  incorporation  in  pursuance 
of  which  their  organization  was  effected.-^  VTlien  an  attempt 
is  made  to  reach  the  liability  of  shareholders  on  their  subscrij)- 
tion  to  the  capital  stock,  all  solvent  stockholders  within  the  jun»- 
diction  should  be  joined  except  when  they  are  very  numerous ;  • ' 
their  liability  (Code)  to  creditors  is  not  that  of  sureties  of  the 
corporation  but  principal  debtors. ^^ 

1  Smith  r.  Poor,  3  Ware,  148  ;  Smith  v.  Hurd.  12  Met.  ^"  :  uinl  k-^p 
Forbes  r.  Whitlock,  3  Edw.  Ch.  447  ;  Greaves  v.  Gouge,  63  N.  V.  I.Y. ; 
compare  Burbank  v.  W.  \V.  R.  D.  Co.  13  Xev.  4?A 

2  Greaves  r.  Gouge,  63  X.  Y.  157;  and  see  Forbes  v.  WliitlcK-k.  i 
Edw.  Cb.  448  ;  geuerallv  Smith  r.  liathbuii.  CO  Barb.  40:: :  ]l  -uih  »•. 
Erie  Rv.  Co.  S  Blatchf.  392  ;  Forbes  v.  31.  El  Paso  <fc  P.  R.  Co.  2  \V.k"H, 
324  ;  Hvde  Park  G.  Co.  v.  Kreber,  5  Briidw.  l."0  ;  Ncall  v.  Ilil!,  V,  (Ml. 
150  ;  compare  Brewer  v.  Boston  Theatre,  104  ?ilass.  :«G. 

3  Booker,  Ex  parte,  IS  Ark.  333;  p^onerally  Pearson  ?•.  Towpr.  .V» 
X.  H.  215  ;  Wiswell  v.  First  Cong.  Church.  14  Ohio  St.:}:;:  IIo:i:h  .-. 
Erie  Ry.  Co.  8  Blatchf.  401 ;  Lawson  v.  Kolbenson,  01  111.  40s. 

4  Morrison  r.  Gold  Mt.  G.  M.  Co.  52  Cal.  SOD  ;  generally  Heath  r. 
Eria  Ry.  Co.  8  Blatchf.  410. 

5  Swaz?v  r.  Companv,  43  X.  H.  202  ;  generally  Weeks  r.  Uolik-,  42 
X.  H.  320. 

6  Colquitt  V.  Howard,  11  C4a.  504. 

7  Cockburn  r.  Union  Bank,  13  La.  An.  283. 
.8    Smith  V.  Steele,  8  Xeb.  118. 

9  Choteau  v.  Allen,  70  Mo.  342  ;  compare  Bronson  r.  I^i  t  'rosso  Hy. 
2  Wall.  301, 

10  Bronson  v.  La  Crosse  Ry.  Co.  2  Wall.  :»2  ;  generally  I^  *  O.  T. 
R.  Co.  V.  Ballard,  2  Met.  170  ;  compare  Blackman  v.  Cent.  Uy.  A  U. 
Co.  58  Ga.  189. 

11  Pope  V.  Leonard,  115  Mass.  287  ;  generally  Perkins  r.  SandiTs.  X 
Miss.  736  ;  compare  Umsted  r.  Buskirk,  17  Ohio  St.  IIG. 

12  Pope  V.  Leonard.  115  Mas:-.  2r.7  ;  ?.'enerally  .\lder  v.  Mil.  I";::.  B. 
M.  Co.  13  Wis.  63  ;  ^lechs.  Bank  v.  Chandler,  19  Wis.  4;{7. 

13  Yoorhees  v.  Receivers  etc.  19  Ohio,  40:5. 

14  Tick  V.  Lane,  56  Miss.  684;  generally  Vmsted  i-.  Hnskirk.  IT 
Ohio  St.  116  ;  Smith  v.  Huckabee,  53  Ala.  193  ;  Branch  v.  Bakt>r,  .mUx 
511. 

15  Sonoma  Val.  Bank  r.  Hill,  13  The  Reporter,  6S  ;  but  »t*e  Pj;"«'r- 
allv  CfUbert  v.  S.  I.  Coal  &  I.  Co.  62  Ind.  522  ;  St.  Lake  City  Natl.  Ifcuik 
r.  ilendrickson,  40  X.  J.  L.  54. 


g  94  JOIXDER  OF  P.UITIES.  270 


CHAPTER  Xr\'. 

OF   THE   JOINDER   OF   PARTIES. 

§  04.  Who  may  bo  joined  as  plaintififs  in  actions  upon  contracts  at 

law. 

?  Co.  Same,  in  actions  for  torts. 

'i  !;6.  Same,  in  snits  in  equitj'. 

§  97.  \Vho  may  bo  joined  as  defendants  in  actions  upon  contract 

I  08.  Same,  in  actions  for  torts. 

'i  09.  Same,  in  suits  in  equity. 

5  94.  Who  may  be  joined  as  plaintiffs  in  actions  upon 
contracts  at  law. — When  a  contract  is  made  with  several 
jointly  all  must  unite  in  an  action  to  recover  upon  it.^  Several 
p:rsons  having  a  joint  interest  in  the  subject-matter  of  the  suit 
may  and  ought  to  join.^  It  is  not  necessary  to  allege  or  prove 
that  plaintiffs  are  partners,  it  is  sufficient  to  show  that  the  con- 
tract, the  subject-matter  of  the  action,  was  made  with  them 
jointly.^  When  an  express  contract  (covenant)  is  made  to  two 
or  more  to  do  an  act,  though  for  the  benefit  of  one  of  them 
only,  all  the  obligees  may  units  in  an  action  thereon ;  *  and 
so  a  joint  action  may  be  maintained  upon  a  written  contract 
made  to  two,  although  one  had  parted  with  bis  interest  therein 
to  the  other  before  it  was  signed.^*  When  a  person  answerable 
to  two  jointly  upon  a  contract  settles  with  one  of  them  so  that 
he  has  no  longer  an  interest  in  the  matter  in  dispute,  it  is  a 
severance  of  the  cause  of  action,  and  the  elebtor  is  liable  to  the 
other  in  an  action  brought  by  him  alone.''  The  right  of  a  sur- 
vivor of  a  joint  contract  to  sue  alone  is  not  limiteel  to  cases  of 
partnership,  but  generally  when  one  of  several  persons  inter- 
ested in  a  joint  contract  dies  the  action  must  be  maintained  by 
the  survivor.'  When  a  contract  is  made  by  a  person  to  do  cer- 
tain work,  and  he  does  it  jointly  with  another,  he  may  still 
maintain  an  action  upon  his  agreement.**  A  person  should  not 
be  made  a  co-plaintiff  who  has  not,  as  the  j^leadings  stand,  any 


2(1  JOrN-DER    OF   PAUTIES.  %  94 

unity  of  interest  witli  those  already  plaintiffs;**  bnt  if  tlio  con- 
tract was  made  witli  two,  both  should  sue  thereon  even  though 
the  work  was  done  tr  one.'"  When  plaintiffs  sno  jointly  proof 
of  a  liability  from  the  defendant  to  one  plaintiff  al-)ne  will  n'4 
support  the  action  ;ii  and  so  plaintiffs  who  have  separate  and 
distinct  causes  of  action  cannot  unite  in  an  action  a^'ainst  tlio 
same  defendant.^-  Where  lands  descend  to  co-parcentrs  witli 
warranty,  and  they  are  evicted  before  severance,  one  of  \\vrr\ 
cannot  sue  on  the  vrarranty  for  his  share  of  tlic  dn:: 
When  the  legal  interest  in  a  covenant  and  in  the  cause  <:  , 
thereon  is  joint  the  covenant  is  joint,  akhougli  it  may  i:i  iu 
terras  be  several  or  joint  and  several ;  !•  but  if  tljc  interest  be 
several,  though  the  words  of  the  covenant  be  jcint,  tise  action 
must  be  several.'^  When  a  contract  has  been  entered  into  with 
tw  )  jointly,  both  should  unite  in  an  action  to  recover  damages 
for  its  breach. i*^ 

1  Marj's  f.  Anderson,  24  Pa.  S!;.-272  ;  ffcn?rally  Ai:s- 
3Ias3.  4J5  ;  Peters  r.  Davis,  7  3Iass.  257  ;  ("iapp  c.  Ri  ■  . 
Haclsell  v.  Inhts.  of  Haucock,  8  Gray.  .5  .'0  :  Harris  '•.  s ..  . 

:M)  ;  Woaro  r.  Burge,  10  Ired.  171 ;  Davis  ?■.  Wi-inamukcr.  .  ■  :;■.  ..£»  : 
Willoiighby  v.  Willoughby,  f.  N.  H.  24o ;  Wright  v.  McLemorc,  10 
(Yerg.  2:i.5. 

2  Wright?'.  Post,  3  Conn.  144  ;HadselIr.Inht<5.  of  H:u        '    "■ 
o-O  ;  Clapp  V.  Ric?,  15  Gray.  559 ;  ar.d  soo  Arch;r  v.  Di:- 

S.  ;]59  ;  Michenor  v.  Dale,  23  Pa.  St.  G2  ;  Dav  r.  Swa:;.  i::  ' 

ott  V.  Cor::forth,  3  Me.  103  ;  Ross  v.  Allen,' fi7  III.  3is  ;  c.  ;.., , 

V.  Marshall,  5  Ala.  &^2  ;  and  see  Doremus  v.  Sjldeii,  I'j  J^.ii:;s.  J;4  ; 
Hill  r.  Gibbs.  5  Hill,  5S  ;  Lyon  v.  Bertram.  20  How.  l.V>. 

3  Wood  r.  Fithian,  24  X.  J.  L.  34  ;  Beller  r.  Block,  19  Ark.  .Vw  : 
compare  McXairy  v.  Thompson,  1  Sneed.  14S. 

4  Bird  v.  ^Vashburn,  10  Pick.  226  ;  Diehl  v.  Gilpin.  8  Phil.x  15  :  .-.nd 
generally  Collinghara  v.  Owens,  71  111.  '^i  \  Robbins  ?•.  v  \  r  ^  in  M,. 
.53'.);  Mf'Mahon  v.  Webb,  .52  Miss.  425 ;  Masterson  v.  V\ 

•X>ti :  All!!:g  V.  Woo<lrnff,  16  La.  An.  6  ;  Burks  v.  Pointo: . 
Ford  V.  Bronaugh.  11  :M()n.  B.  15  ;  and  see  Philips  v.  > 
ro.SSIIl.  c05  ;  MoCotter  r.  Lawrence, 4  Hun,  lOD  ;  MrXairy  ■ 
son,  1  Snoed,  14S  ;  compare  Browner  v.  Davis,  15  C.il.  II  ;  P: 
Purkett,  13  Cal.  590  ;  see  also  Blanchard  r.  Dyer,  21  Me.  HI  :  ! 
Lasater,  3  Ark.  .5f>S. 

5  Brewer  v.  Stone,  11  Gray.  231 ;  and  see  Harvey  v.  Myer,  a  Iiid. 
393  ;  compare  Watertown  r.  White,  13  Mass.  478. 

G    B.  &  M.  Rv.  V.  Portland  Rv.  110  Mass.  4i)0  ;  generally  Ri  : 
r.  Parker.  12  Met.  52  ;  see  Henrv  v.  Mt.  Plea.s.  Township,  7i>  M 
same  effect,  Stedman  v.  Shelton,  1  Ala.  8"  ;  Beac-h  r.   Ht>t' 
fon!i.  cm. 

7  Smith  V.  Salomon.  1  Colo.  177  :  Peters  v.  Davis,  7  Ma.ss.  257  :  ffen- 
erallv  Ehle  ?•.  Pnrdv,  6  Wend.  (v?0  ;  VundeuUeuvcl  r.  Storrs,  3  Coun. 
207  :  Douuell  v.  3Ianson,  103  Mass.  579. 


g  95  JOIXDEK   OF   PABTIES.  272 

S  Blakeney  v.  Evans,  2  Cranch,  184  ;  compare  Martin  ?•.  ]Nrartin,  3 
Chand.  ::0o  ;  Jewett  v.  Weston,  11  Me.  ;U'< ;  and  see  Homer  r.  Kilborn, 
l.i  Mass.  13,3  ;  Humphreys  v.  Magee,  13  Mo.  436. 

n  Frear  v.  Bryan,  12  Ind.  344  ;  and  see  Ford  v.  Bronaugh,  11  Mon. 
B.  15. 

10  Martin  v.  Martin,  3  Chand.  305  ;  Jewett  v.  Weston,  H  Me.  348  ; 
generally  Wells  v.  Gaty,  9  Mo.  56.5. 

11  Strickland  v.  Burns,  14  Ala.  513. 

r^  Bort  V.  Yaw,  40  Iowa,  .324  ;  generally  Tate  r.  O.  &  M.  Ry.  Co.  10 
Ind.  174  ;  Homer  v.  Kilborn,  15  Mass.  133  ;  Tennant  v.  Pflster,  51  Cal. 
513  ;  and  see  Farmer  ?•.  Stewart,  2  X.  H.  9'J  ;  Ind.  School  Dists.  v.  Ind. 
School  Dist.  50  Iowa,  »24  ;  The  Governor  v.  Webb,  12  Ga.  190. 

13  Tapscott  V.  Williams,  10  Ohio,  444  ;  generally  Lawrence  v.  Mont- 
gomery, ST  Ala.  189. 

14  Capen  v.  Barrows,  1  Gray,  379  ;  Trustees  of  Perry  ville  v.  Letcher, 
1  Mon.  14. 

15  Trustees  of  Perrvville  v.  Letcher,  1  Mon.  14  ;  generally  Emery 
V.  Hitchcock,  12  Wend.  158  ;  Sims  v.  Harris,  8  Mon.  B.  55  ;  Pickering 
r.  De  Rochemont.  45  N.  H.  77. 

16  Rainev  v.  Smizer.  2S  Mo.  311  ;  M'Gilvery  v.  Moorliead,  3  Cal.  270  ; 
Moody  V.  Sew^all,  14  Me.  297. 

I  95.  Who  may  be  joined  as  plaintiffs  in  actions  for  torts. 
—  All  the  parties  in  interest  sbonld  join  in  an  action  of  trover. ^ 
Objection  to  the  failiii-c  to  join  sshoiild  be  taken  advantage  of 
by  plea  in  abatement;  if  not  so  taken  advantage  of  the  other 
part  owners  may  sue  alone. ^  When  the  defect  does  not  appear 
upon  the  face  of  the  complaint  it  may  be  taken  advantage  of 
by  answer  or  by  apportionment  of  damages  at  the  trial. ^ 
Where  two  vessels  are  under  contract  of  mateship  there  is  no 
such  joint  property  in  a  whale  taken  by  one  of  them  as  require  the 
owners  of  both  to  join  in  an  action  for  its  tortious  conversion.-* 
When  the  legal  interest  in  a  cause  of  action,  whether  it  arises 
out  of  contract  or  tort,  is  joint,  residing  in  several  persons,  all 
who  are  living  must  join  in  an  action  upon  it;^  but  the  pen- 
alties imposed  by  statute  for  usury  is  not  necessarily  a  joint 
and  common  right  to  all  borrowers ;  so  where  a  usurious  con- 
tract is  made  with  three,  a  separate  action  to.  recover  the  penalty 
may  be  maintained  by  one.*"  When  there  arc  several  joint 
owners  of  a  chattle  all  should  join  in  trespass  for  its  injury.' 
When  plaintifis  sue  out  a  writ  which  is  returned  non  est 
inventus  they  may  maintain  a  joint  action  for  a  false  return.^ 
Where  the  owner  of  property  and  several  insurers  have  rights 


273  JonroEB  of  parties.  \  95 

of  action  for  different  portions  of  the  value,  all  arihin-  f.ut  of 
the  same  wrongful  act,  they  may  join  in  a  single  action  agiiuht 
the  wrong-doer.'^  When  A.  has  the  legal  title  to  land  of  wliich 
B.  is  in  possession  under  contract  entitling  him  to  a  deed  \\\)oxi 
full  performance,  etc.,  they  may  unite  in  bringing  an  action 
under  the  statute  against  one  who  flows  the  land  1  y  moans  of  a 
mill  dam,  and  the  court  has  power  to  apportion  the  damagte-.'" 
When  several  persons  have  separate  and  distinct  tracts  of  land 
which  are  injured  and  made  less  valuable  by  reasons  of  obstnic- 
tions  in  a  natural  watercourse,  as  by  ditches,  dams,  etc.,  which 
cause  overflow  and  amount  to  a  common  injury  to  all,  they 
may  as  parties  having  a  common  interest  join  in  a  suit  to 
restrain  defendant  from  maintaining  such  nuisance."  A  joint 
action  for  slander  cannot  be  maintained  ;  if  the  same  slanderous 
words  are  spoken  of  several  persons  at  the  same  time  they  fur- 
nish each  ground  for  a  separate  action,  but  there  being  no 
community  of  interest,  they  cannot  sue  together.'-  In  case  of 
a  joint  bailment  of  property  all  the  joint  owners  must  unite  in 
an  action  for  its  recovery. '-^ 

'■  1  Whitnev  v.  Stark,  8  Cal.  516  ;  generally  St.  Louis  Ry.  Co.  v.  Lin- 
der,  .39  111.  4:^4  ;  see  Brizendine  r.  Frankfort  B.  Co.  2  Men.  B. :«  ;  Pick- 
ering r.  Pickering,  11  X.  H.  14.3. 

2  Whitnev  v.  Stark,  8  Cal.  516  ;  generally  Plckenng  v.  Pickering, 
11  X.  H.  143  ;  Bowman  v.  Gove,  11  X.  H.  266. 

3  Whitnev  v.  Stark,  8  Cal.  516  ;  generally  Rich  v.  PenfieUl.  1 
AVend.  SSO  ;  St.  Louis  Rv.  Co.  r.  Linder,  39  111.  434  ;  Weare  c  Biirge, 
10  Ired.  170  ;  compare  Brizandine  v.  Frankfort  B.  Co.  2  Mnn.  B. :«. 

4  Taber  v.  Jenny,  1  Sprague,  31.5. 

5  Harris  v.  Swanson,  62  Ala.  300;  generally  Tracy  v.  Bowen,  .1 
X'.  J.  L.  964  ;  Columbia  D.  B.  Co.  v.  Geisse, :«  X.  J.  L.  40  ;  Pickering  r. 
Pickering,  11  X.  H.  144. 

.    6    Phillips  V.  Bevans,  23  X.  J.  L.  .374. 

7  Pickering  v.  Pickering,  11  X.  H.  144  ;  generally  Rus.sell  r.  ."^ux-k- 
ing.  8  Conn.  241  ;  Burton  v.  Winsor  U.  S.  M.  Co.  2  I  t  ■''.  -i!:  -•• 
Giov-auni  v.  First  Xational  Bank.  51  Ala.  177. 

*  8    Houser  V.  Hampton,  7  Ired.  .3:^. 

•  9  Swarthout  v.  Chi.  &  X.  W.  Ry.  Co.  49  Wis.  628  ;  I'ra:;  y.  t>a.i- 
ford,52  Wis.  118. 

10  Sevmour  v.  Carpenter,  51  Wis.  414  ;  and  see  Schiffv-r  r.  Kau 
Claire.  .5'l  Wis.  388  ;  but  see  Palmer  v.  Waddell,  22  Kan.  :tt7  ;  seo  also 
Schuylkill  X'av.  Co.  r.  Farr,  4  Watts  &  S.  370. 

11  Palmer  r.  Waddell.  22  Kan.  .%57  ;  generally  Barneys  i-.  RaoJne.4 
AVis.  46.^  ;  Gillespie  >-.  Forrest,  is  Hun.  Ill  ;  Blunt  r.  Hay.  4  Sand.  I  n. 
364  ;  Peck  v.  Elder,  3  Sand.  131  ;  Cadigau  v.  Brown,  120  Mass.  •!'«  ;  see 
Tate  r-  O.  &.  31.  Ry.  Co.  10  Ind.  174. 


g  96  JOINDEK   OF   PARTIES.  274; 

12  Hinkle  v.  Davenport,  38  Iowa,  358. 

13  Stachcly  v.  Pic^rce,  28  Tex.  335  ;  ami  see  Dm-fee  v.  Grinnell,  fiO 
111.  372. 

§  96.  Who  may  be  joined  as  plaintiffs  in  suits  in  eq  uity. 
—  Parties  having  no  common  interest  in  the  subject-matter  of 
controversy,  but  asserting  several  and  distinct  rights,  cannot 
unite  and  seek  redress  in  a  joint  suit,  though  their  several 
rights  ai-e  against  the  same  person. ^  It  is  not  a  valid  objection, 
however,  that  parties  claiming  different  interests  have  asserted 
them  in  the  same  suit ;  -  but  parties  whose  interests  depend 
upon  the  same  right,  and  who  would  be  alike  affected  by  the 
judgment  may  properly  be  joined  ;  -^  so  if  substantial  ground  of 
complaint  exists  in  common  to  two  persons,  and  where  if  suit 
were  brought  by  one  the  other  would  have  to  be  made  a  defend- 
ant, they  may  be  allowed  to  join  as  plaintiffs,  although  their 
titles  and  in  some  respects  their  rights  arc  not  joint.*  The 
general  rule  is  that  unconnected  joarties  maj-  join  in  bringing  a 
bill  in  equity,  where  there  is  one  connected  interest  among 
them  all,  centering  in  the  point  in  issue  in  the  cause. ^  When 
judgment  creditors  have  acquired  liens  upon  the  property  of 
their  debtor  which  entitle  them  to  similar  relief  against  an  act 
of  the  defendant  which  is  a  common  injury  to  both,  and  pre- 
vents them  from  enforcing  their  liens,  they  may  join  in  a  bill 
to  obtain  such  relief.*'  The  payee  of  a  note  secured  by  a  mort- 
gage, and  the  assignee  of  a  paid  interest  therein  must  join  in  a 
suit  to  foreclose  the  security.'^  If  the  mortgage  be  given  to 
secure  several  notes  to  different  persons  it  may  be  regarded  as 
a  several  security  by  each;^  but  there  can  be  no  objection  to  a 
joint  suit  by  the  several  holders  of  the  notes."  Material  men 
and  mechanics  who  are  entitled  to  a  lien  on  a  building,  but 
whose  claims  are  several  without  any  community  of  interest  in 
the  claims  themselves,  may  under  the  statute  join  in  an 
equitable  action  to  enforce  and  establish  their  liens. i"  A.  pur- 
chased land  of  X.  for  a  certain  sum,  and  paid  part  of  the 
purchase  price,  giving  a  note  secured  by  a  mortgage  executed 
by  A.  and  C;  upon  discovery  of  fraud  in  the  sale  and  before 
transfer  of  the  note,  A.  and  C.  were  allowed  to  join  in  an  action 


275  .  JOIXDER   OF   PARTIES.  2   90 

to  obtain  a  decree  for  the  cancellation  of  t'.ie  note  and  mort- 
gage upon  tlie  ground  of  false  and  fraudulc-nt  rcprestntationa 
by  the  seller. ^^  "When  one  of  two  joint  makers  of  a  not"  given 
for  the  purchase  price  of  land  promises  a  third  perst  n  tliat  ho 
will  pay  it  if  the  latter  purcha-es  it,  and  the  latter  taki-s  the 
note  upon  the  faith  of  the  promise,  yet  the  former  may  join 
with  hi-s  co-maker  in  a  bill  for  the  recision  of  the  contract  of 
sale,  no  relief  being  asked  by  him  against  the  holder  cf  t!jo 
note.'-  Separate  pni-chasers  of  different  parcels  of  the  same 
lot  cannot  join  in  a  bill  against  the  former  owner  to  restrain 
the  prosecution  of  separate  ejectment  suits  brouglit  by  him 
against  them  ;  '^  so  where  property  is  owned  by  several  p*  i-sons, 
each  owning  a  separate  part  by  title  derived  from  (li.Terent 
J^Dersons,  they  cannot  join  in  a  bill  to  enjoin  an  execnfion  sale 
•of  the  property.'*  A  suit  may  be  maintained  by  the  tax  i)ayers 
|jf  a  district  to  set  aside  and  annul  an  unauthorized  contract 
entered  into  by  the  district  board ;  '^  but  the  mere  saving  of 
expense  of  separate  suits  at  law  is  not  a  sufficient  reason  for 
"  uniting  in  a  bill  in  chanceiy  to  obtain  an  injunction  against 
the  doing  of  an  act  which  would  give  to  each  of  the  plaintiffs  a 
right  of  action  at  law.'^  The  obligors  in  a  contract  for  the  sale 
)0f  real  estate,  under  which  the  obligee  has  taken  possession, 
although  the  consideration  has  not  been  fully  paid,  have  such 
an  interest  in  the  realty  as  will  entitle  them  to  unite  in  a  suit 
to  set  aside  a  tax  deed.'^ 

1  Hendrickson  v.  Wallace,  SI  N.  J.  Eq.  C,(\.-y ;  Uoyhold  >•.  i  l ,  r.iman. 
2  Dc4.  Cli.  M  ;  State  and  State  Bk.  ex  parte.  1'.  Ark.  "JiM  :  P.nsdiis  ;•. 
Lvrnan,  4Blatchf.  433  ;  Struppman  ?■.  MulK-r.  ."2  How.  I'r.  "Jl''. ;  I'luiii 
?•."  Morris  C.  &  B.  Co.  10  X.  J.  Eq.  2.>^  ;  Farrot  )•.  Parish  of  K.  IhiUf.i 
Rouge,  30  La.  An.  006  ;  Taylor  v.  King,  32  Midi.  42  ;  Baker  v.  Rluc- 
hard,  11  \V.  Va.  249. 

2  Faulk  r.  Faulk,  23  Tex.  06.3. 

3  Catlin  v.  Wheeler,  40  Wis.  51.0  ;  generally  Porter  r.  Cloments,  S 
Ark.  :m  ;  Creed  v.  Lancaster  Bank,  1  Ohio  St.  0. 

4  Bardwell  v.  Ames,  22  Pick.  ?-53 ;  and  see  Taylor  i*.  King,  C 
Mich.  42. 

.5  Owen  v.  Frink,  24  Cal.  177  ;  see  Farrot  ;•.  Parish  of  E.  Baton 
Rouge,  30  La.  An.  607  ;  Plum  ?•.  Morris  Canal  &  B.  Co.  10  X.  J.  Fkj. 
250  :  North  v.  Bradwav,  0  Minn.  180  ;  .Smitli  v.  Srhultinir,  14  Hun.  .-1 ; 
Middleton  ?•.  Flat  River  B.  Co.  27  Mich.  cM  ;  coniparo  Armstrong  r. 
Treasurer,  10  Ohio,  236. 
J    0    Clarksonr.  De  Peyster,  3  Paigo,  321 ;  generally  Rnnn.^-  '■   l"-- 


§97 


JOINDER   OF   PARTIES. 


ton.  12  Ind.  2(13;  North  ?•.  Bradwaj',  0  Minn.  185;  Gates  v.  Boomer,  17 
Wis.  •J-tM;  Elfelt  r.  Ilinch,  5  Orej?.  2.>5;  Kennedy  v.  Kennedy,  2  Ala. 
024;  Love  r.  Getsinger,  7  N.  J.  Kq.  202;  compare  Hagerty  v.  Xixon, 
26  N.  J.  Eq.  42 ;  see  Brown  v.  Bates,  10  Ala.  4:;r.. 

7  Stevens  v.  Campbell,  13  Wis.  o76;  and  see  Plowman  v.  Riddle, 
14  Ala.  171  ;  Upjohn  v.  Ewing.  2  Ohio  81.  20. 

ft  Tvler  ?'.  Yreka  Water  Co.  14  Cal.  217 ;  Thayer  v.  Campbell,  0 
Mo.  270;  Burnett  ?-.  Pratt,  22  IMck.  ,5.57. 

9  Pogue  V.  Clark,  2.5  111.  .352  ;  but  see  Swenson  v.  Plow  Co.  14  Kan. 
388. 

10  Barber  v.  Reynolds,  33  Cal.  502. 

11  Bowman  r.  Germy,  23  Kan.  .309. 

12  Lanier  v.  Hill,  25  Ala.  558. 

13  Wood  V.  Perry,  1  Barb.  120. 

14  Baker  v.  Rinehard,  11  W.  Va.  240;  but  see  Johnson  v.  Drum- 
mond,  20  Gratt.  428. 

15  Peck  V.  School  Dist.  21  Wis.  522. 

16  Sheldon  v.  Centre  School  Dist.  25  Conn.  228. 

17  Watson  v.  Phelps,  40  Iowa,  483. 

I  97.  Who  may  be  joined  as  defendants  in  actions  upon 
contracts.  —  When  a  coutract  is  made  on  behalf  of  a  person 
who  contracts  for  himself  and  others,  and  this  is  known  to  the 
other  contracting  party,  the  former  cannot  be  sued  alone  for  a 
breach  of  the  contract  ;i  if  two  are  sued  jointly  the  plaintiff 
must  establish  a  joint  liability,-  or  there  can  be  no  recovery.^ 
When  it  appears  from  a  judgment  record  from  another  State, 
that  in  a  joint  suit  against  two  defendants  a  judgment  was 
rendered  at  different  times  for  the  same  amount  against  each 
defendant,  but  for  the  breach  of  a  joint  promise,  a  joint  action 
against  such  defendants  on  the  record  will  be  sustained.' 
When  X.  had  agreed  in  writing  to  pay  tlie  debt  of  another,  and 
Y.  in  a  postscript  subscribed  by  him,  added,  "  I  will  be  account- 
able with  X.  according  to  the  above  writing,"  an  action  will  lie 
against  both  as  joint  con  tractors. ^  Two  persons  cannot  be 
joined  in  an  action  r.G  defendants  where  a  recovery  is  sought 
against  one  alone  upon  a  written  contract,  and  against  both 
upon  an  oral  agreement.''  In  an  action  against  the  parties  to  a 
joint  contract  all  the  obligors  must  be  made  defendants,"  unless 
some  arc  discharged  in  bankruptcy,^  or  the  debt  is  barred  as  to 
some  by  the  Statute  of  Limitations ; '-'  and  so  if  one  die  the 
action  may  be  brought  against  the  survivors  alone,^"  or  (Code) 


2T^  JOINDER   OF   PARTTES.  /    97 

jointly  with  the  executor  of  the  decedent."  All  persona  au- 
thorized by  law  to  be  joined  as  defendants  are  joint  defendant* 
within  the  meaning  of  that  term  as  used  in  the  Btatute.'-' 
Upon  a  joint  and  several  liabilify  plaintiff  may  proceed  aj,'ainsi 
one  or  all  as  he  may  elect ;  if  he  elect  to  sue  all  ho  must  pro- 
ceed against  them  jointly, ^^  but  at  common  law  the  contract 
could  not  be  treated  as  a  joint  demand  of  more  than  one,  and 
less  than  all  the  debtors. ^^  This  rule  has  been  changed  by 
statute  in  many  States,  so  that  now  in  those  States  all,  or  cue. 
or  any  intermediate  number  of  the  co-contractors  may  Ix;  sucil 
upon  the  contract. ^^  A  judgment  for  or  against  one  of  the 
several  makers  of  a  joint  obligation  is  a  bar  to  an  action  after- 
ward brought  against  another;'*^  the  rule  is  otherwise  if  the 
obligation  is  joint  and  several ; "  but  if  plaintiff  recovers  judg- 
ment against  one,  liable  upon  a  joint  and  several  contract,  he 
cannot  subsequently  proceed  jointly  against  the  remaining 
obligors,  the  first  action  amounts  to  a  severance  of  the  con- 
tract.'** In  Mississippi  in  actions  upon  promissory  notes  and 
bills  of  exchang?,  all  the  parties  liable  therein,  residing  ni  thi- 
State,  must  be  made  defendants. '^  The  Code  in  Ohio  Kavis  it 
optional  with  plaintiff  to  join  such  persons  in  the  action  ;  ^  all  or 
any  of  them  may  be  joined ;  '^^  and  in  a  joint  action  against  twv, 
both  of  whom  have  been  served  with  process,  the  plaintiff  may 
by  leave  of  court  dismiss  as  to  one  and  proceed  to  judgimnt 
against  the  other  ;  such  judgment  remaining  in  force  will  not 
be  a  bar  to  a  subsequent  suit  on  the  note  against  the  other.-- 
At  common  law  a  joint  action  could  only  be  brought  to  enforct 
a  joint  liability;  this  principle  has  been  greatly  modiiit'*!  l-y 
legislation  so  that  now  in  many  States  the  guarantor  of  a  note- 
may  be  jointly  sued  with  the  other  parties  thereon, "•"  so  tin 
maker  and  indorser  may  be  sued  jointly,-'  and  i  laintitT  niny 
dismiss  as  to  the  indorsers  and  take  judgment  against  tin 
makers  ;  ^^  so  if  the  record  does  not  show  that  the  maker  is  a 
resident  of  the  State,  the  action  may  be  dismissed  as  to  him  and 
judgment  may  be  taken  against  the  indorsers.-"^  "Wlicn  a  joir.t 
action  against  all  the  obligors  of  a  bond  is  the  only  rt-uutly 
thercon,  it  is  error  to  render  a  several  judgmeut^as  tj  one.  U  av- 
Parties  — 24 


g   97  JOINDER   OF   PARTIES.  278 

ing  the  action  to  proceed  against  the  others; 2"  but  when  a 
several  judgment  is  proper  it  may  in  the  discretion  of  the  court 
be  talien  against  one  or  more,  leaving  the  action  to  proceed 
against  the  others  ;  on  such  final  trial  a  judgment  may  be  ren- 
dered against  the  remaining  defendants  for  the  whole  or  such 
part  of  the  cause  of  action  as  may  be  proved  against  them.^s 
In  Louisiana  one  joint  obligor  may  be  sued  separately  and 
judgment  be  rendered  against  each  for  his  proportion  of  the 
debt,  without  the  co-obligor  being  a  party  to  the  suit.'^^  When 
there  is  a  joint  and  several  liability  judgment  may  be  rendered 
against  those  over  whom  the  court  acquires  jurisdiction.™ 

1  Stover  V.  Metzgar,  1  Watts  &  S.  2fiD  ;  generally  McArtliur  r. 
Ladd,  5  Ohio,  518  ;  see  AUin  v.  Shadburne,  1  Dana,  68. 

2  Griffin  v.  Simpson,  45  X.  H.  20  ;  Manahan  v.  Gibbons,  10  Johns. 
Ill  ;  Birkbeck  v.  Tucker,  2  Hall,  120  ;  Plainer  r.  Johnson,  3  Hill.  477  ; 
generally  Florence  S.  M.  Co.  v.  G.  &  B.  S.  M.  Co.  110  Mass.  83. 

3  Kowan  v.  Rowan,  29  Pa.  St.  182  ;  generally  Collins  v.  Burlington, 
44  Vt.  20  ;  Addicken  i'.  Schrubbe,  45  Iowa,  310  ;  Hempstead  v.  Stone,  2 
Mo.  fiC. ;  but  see  People  v.  Frisbie,  18  Cal.  403. 

4  Oyster  v.  Peavy,  40  N.  J.  L.  401  ;  see  Webb  v.  Games,  4  Mo.  11. 

5  Castner  v.  Slater,  50  Me.  212. 

6  Addicken  v.  Schrubbe,  45  Iowa.  316. 

7  Dougartr.  Desangle,  10  Rob.  (La.)  432;  Duggan  v.  iJi  Li/.ardi,  5 
Rob.  (La.;  226  ;  Munn  v.  Haynes,  46  Mich.  143. 

8  Dorn  v.  O'Neale,  6  Nev.  158  ;  Ivey  v.  Gamble,  7  Port.  516. 

9  Caswell  v.  Englemann,  31  Wis.  96  ;  generally  Dunnv  v.  Smith, 
18  N.  Y.  568. 

10  Binge  v.  Smith,  Dallam  (Tex.)  616  ;  and  see  Machette  ?'.  Magee, 
9  Phila.  24 ;  Bennett  v.  Shillars,  7  Tex.  602 ;  Harwood  r.  Roberts,  5 
Me.  441. 

11  Benn'ett  v.  Shillars,  7  Tex.  602  ;  see  Divine  v.  Duncan.  2  Abb. 
N.  C.  3.30 ;  Clarborn  v.  Goodloe,  Cooke,  394  ;  In  re  O'Flaherty,  7  La. 
An.  640.  . 

12  Hosie  V.  Judge  etc.  22  Mich.  496. 

13  Greer  v.  Miller,  2  Over.  188  ;  Peoples.  Harrison,  82  111.  86  ;  Minor 
V.  Mechanics'  Bank,  1  Peters,  73  ;  Colt  v.  Learned,  118  Mass.  381. 

14  Winslow  V.  Herrick.  9  Mich.  380. 

15  Deloach  v.  Dixon,  1  Hemp.  429;  Gossom  v.  Badgett,  6  Bush, 
100  ;  People  v.  Love,  25  Cal.  526  ;  Bradford  v.  Toney,  ;W  Ark.  764. 

16  Clinton  Bank  ?-.  Hart,  5  Ohio  St.  35  ;  and  see  Ferrall  v.  Brad- 
ferds,  2  Fla.  513  ;  but  see  Williams  v.  Rogers,  14  Bush,  786. 

17  Clinton  Bank  v.  Hart,  5  Ohio  St.  35  ;  People  v.  Harrison ,  82  111.  86. 

18  Bangor  Bank  v.  Treat,  6  Me.  207. 

19  Stiles  V.  Inman.  55  Miss.  472  ;  compare  Crump  v.  Wooton,  41 
Miss.  612. 

20  Green  v.  Burnet,  1  Handy,  285. 


279  lOIN-DER   OF   PAKTIES.  ^98 

21  Deckpr  v.  Trilling.  24  Wis.  612  ;  see  Clapp  v.  Preston,  15  Wis.  544; 
srenerally  Garrison  v.  Hollins,  2  Lea,  (^  ;  Kautzman  r.  Weirich,  26 
Ohio  8:.  ;»2. 

22  Maiden  ?•.  Webstar,  :»  Tnd.  317;  see  Brenner  v.  Egly,  2.3  Kan. 
124  ;  generally  Bennett  v.  Townsend,  1  Neb.  460. 

23  Kautzman  v.  Woirich.  2o  Ohio  St.  XK  ;  Tooke  v.  Taylor.  31  Te.x. 

4  ;  but  st^e  Harris  v.  Eldridge,  o  Abb.  X.  C  2^:) ;  Brown  r.  C'hamplin, 
t;:\  X.  Y.  220;  Marshal  v.  Peek,  1  Dana,  HIO  :  Stewart  v.  Glenn,  .5  Wis. 
16  ;  compare  Lamping  v.  Cole,  o  West  L.  M.  187. 

24  Pcretz  v.  Peretz,  1  Mart.  (O.  S.  i  22D  ;  Hosie  v.  Judge  etc.  22  Mich, 
4;)6  ;  generally  Mix  ?'.  .State  Bank,  1 5  Ind.  522  ;  Riddle  v.  Mandeville, 

5  Cranch,  322  ;  but  see  Weston  v.  Hoge,  7  Yerg.  3.t0. 

25  Kirk  v.  Seawell,  2  Smedes  &  M.  571 ;  and  see  McGrath  v. 
Hoopes,  4  Cush.  438. 

26  Pool  V.  Hill,  44  Miss.  300  ;  compare  Boush  v.  Smith,  2  Smedes  & 
M.  512. 

27  Aucker  v.  Adams,  2:5  Ohio  St.  54:) ;  generallv  Hocking  Val. 
Bank  v.  Walters,  1  Ohio  St.  202  ;  Hale  v.  Crowell,  2  Fla.  o;i7  ;  Beale  r. 
Trudeau.  IS  La.  An.  12) ;  Griffin  r.  Simpson,  45  X.  H.  20  ;  Thompson 
v.  Cretien,  3  Rob.  iLa.r27;  compare  Ferrall  v.  Bradfords,  2  Fla.  513; 
Wooten  V.  Xall,  IS  Ga.  613  ;  Walker  r.  3L  M.  D.  &  M.  Ins.  Co.  31  Ala. 
529. 

2S  Hempy  r.  Ransom,  :V3  Ohio  St.  319  ;  generally  see  Stafford  v. 
Xutt,  51  Ind.  'o-iS  ;  Mavenbaum  v.  Murphy,  5  Xev.  386  ;  People  v. 
Edwards,  9  Cal.  293. 

29  Mitchell  V.  D'Armond. :»  La.  An.  330. 

30  Simpson  v.  Prather,  5  Oreg.  88. 

I  98.  Who  may  be  joined  as  defendants  in  actions  for 
torts.  —  When  an  action  is  brought  against  several  defendants 
for  a  tort,  it  is  essential  that  the  act  complained  of  bo  joint ;  ^ 
thus  where  two  or  more  persons  act  each  for  himself  in  pro- 
ducing a  result  injurious  to  plaintiff,  they  cannot  be  held 
jointly  liable  for  the  acts  of  each  ot^er.-  Wlien  an  immediate 
act  is  done  by  the  co-operation  or  the  joint  act  of  several  per- 
sons, they  arc  all  trespassers  and  may  be  sued  jointly  or 
severally,"*  but  there  can  be  but  one  satisfaction.  An  action  on 
the  case  for  negligence  occasioning  tlic  loss  or  destruction  of  a 
a  slave  hired  by  plaintiff  to  a  co-partnership  may  be  maintained 
against  one  of  the  firm  alone,  or  all  might  be  united  in  the 
action.*  A  joint  action  will  not  lie  in  favor  of  plaintiff  against 
several  defendants  whose  placesj  of  business  are  distinct,  and 
who  have  no  business  connection'with  each  other,  for  injuries 
caused  plaintiff  by  the  sale  of  intoxicating  liquors  to  her  hus- 
band ;  ^  the  seller,  however,  maybe  joined  with  the  owner  of  the 
premises  unoa  which  the  liouor  was  sold,  and  unon  which  it  is 


§  98  JOINDER   OF   PAETIES.  280 

sought  to  enforce  the  lien.'^  Under  the  Revised  Statutes, 
( Maine) ,  chapter  82,  ^  11,  when  one  of  the  defendants  in  an  action 
brought  to  recover  treble  damages  for  the  destruction  of  per- 
sonal property  dies,  plaintiff  may  discontiniTC  as  to  the  surviv- 
ors and  proceed  against  the  executor  of  the  decedent,  or  he  may 
discontinue  as  to  the  executor  and  proceed  against  the  surviv- 
ors.' A  release  of  one  joint  trespasser  or  a  satisfaction  and 
discharge  of  the  liability  against  him  which  shows  on  its  face 
that  it  is  not  the  intention  to  satisfy  and  discharge  the  liability 
of  the  other  joint  trespassei's  will  not  be  allowed  to  work  as  a 
discharge  of  the  action.**  A  joint  action  will  not  lie  against  the 
owners  of  a  herd  of  cattle  for  trespasses  committed 'by  such 
stock,  each  person  owning  a  several  and  distinct  portion 
thereof ;  ^  but  if  the  stock  is  kept  in  a  common  herd  upon  the 
owner's  farm  and  are  under  the  joint  control  of  all  the  owners, 
a  joint  action  will  lie.^"  In  an  action  for  trover  and  conversion 
against  two,  where  defendants  appear  and  file  a  joint  plea  of 
not  guilty,  and  issue  is  thereon  joined,  the  jury  may  acquit 
one  and  find  the  other  guilty  and  assess  the  damages  against 
him.*^  When  several  persons  have  been  jointly  concerned  in  a 
series  of  fraudulent  transactions  they  may  be  united  as  defend- 
ants in  a  suit  to  annul  the  fraudulent  acts ;  ^'-^  so  where  two  or 
more  join  in  the  commission  of  a  fraud  by  means  of  false  rep- 
resentations, they  may  be  joined  in  an  action  founded  upon 
such  fraud ;  and  it  is  immaterial  whether  the  defendants  had 
or  had  not  a  previous  agreement  to  defraud  the  plaintiff,  or 
whether  they  jointly  owned  the  property  sold  or  not ;  ^^  but  a 
mere  participation  in  a  conspiracy  to  defraud  is  not  of  itself  a 
sufficient  connecting  link  to  render  them  liable  to  be  joined  in 
the  same  action. ^*  It  is  not  sufficient  to  make  a  tort  joint  that 
the  acts  constituting  it  stand  even  in  immediate  juxtaposition 
both  in  time  and  place,  there  must  be  a  oneness  of  act.  Thus 
where  a  river  was  divided  by  an  island,  and  X.  maintained  a 
dam  across  the  north  channel,  and  Y.  maintained  a  dam  across 
the  south  channel,  an  action  will  not  lie  against  X.  and  Y. 
jointly  in  favor  of  A.  to  recover  for  damages  sustained  by  rea- 
son of  overflow  caused  by  said  dams.^^    A  creditor  at  whose 


281  JOIXDER   OF   PAETIES.  \   98 

suit  an  attachment  is  made  of  goods  not  the  property  of  his 
debtor  is  not  liable  in  rej)levin  for  the  goods  attached  either 
alone  or  jointly  with  the  attaching  officer  ;  ">  but  if  the  creditor 
assisted  in  t  iking  the  propsrty  and  took  it  into  his  own  posses- 
sion after  the  attachment,  a  joint  action  will  lie.^^  In  an  action 
of  ejectment  a  plaintiff  cannot  join  in  one  suit  several  defend- 
ants, each  claiming  several  and  distinct  parcels  of  land  ;  but  if 
the  parsons  in  possession  are  mere  trespassers,  he  will  not  be 
forced  to  separate  actions.'*^ 

1  Keves  v.  L.  Y.  G.  W.  &  W.  Co.  53  Cal.  7*4  :  Blaisdell  7-.  Staphens, 
14  Xev.  21  ;  Bard  i-.  Yohn,  26  Pa.  St.  +«  ;  Guille  v.  Swan,  H  Johns.  3S2. 

2  Blaisdell  ?•.  Stephens,  14  Xev.  21  ;  Little  S.  Xnv.  Co.  v.  Richards. 
47  Pa.  St.  14'i ;  Partenheimer  v.  Van  Orden,  20  Barb.  480  ;  Glamorgan 
V.  Guise,  1  Mo.  143  ;  La  France  v.  Krayer,  42  Iowa,  14'). 

3  Guiil.-'  r.  Swan,  10  Johns.  3S2  ;  Whit?  v.  Smith,  12  Rich.  fiOO  :  gen- 
erallv  Buddiiisrion  c.  Shearer.  22  Pick.  42  i ;  Mandiebauin  r.  Kussoll.  4 
Nev.  .5-is  ;  Bloss  i'.  Plvmale,  3  \V.  Va.  403  ;  Develing  r.  Sheldon,  Ki  111. 
3;)I  :  Smith  ;•.  Gayle,  -58  Ala.  606  ;  Page  v.  Freeman,  1!)  Mo.  422  ;  Sellick 
V.  Hall,  47  Conn.  273. 

4  Y\'hite  v.  Smith,  12  Rich.  .5^9  ;  generally  Van  AVagenen  v.  Kemp, 
7  Hun,  320. 

5  La  France  v.  Krayer,  42  Iowa,  145. 

6  La  France  v.  Krayer,  42  Iowa,  14n  ;  Loan  v.  Hi:ioy,  5:5  Iowa,  ^. 

7  Treat  ?•.  Dwinel,  51  Me.  344  ;  Galbreath  r.  Jones,  G3  Ala.  1.":: ; 
Buddington  r.  Shearer,  22  Pick.  42). 

8  Bloss  V.  Plymale.  3  \V.  Va.  403  ;  and  see  Ellis  v.  Esson.  50  Wis. 
145  ;  Chamberlin  r.  Murphv.  41  Vt.  110  ;  Snow  v.  Chandler,  10  N.  H. 
93  ;  Smith  v.  Gayle,  58  Ala.  "GO?. 

9  Cogswell  V.  Murphy,  4r>  Iowa.  45  ;  Van  Steenburgh  v.  Tobias,  17 
Wend.  -562  ;  generally  Russell  v.  Tomlinson.  2  Conn.  207  ;  Buddington 
?'.  Shearer,  20  Pick.  47!) ;  Parlenheimer  v.  Van  Orden,  20  Barb.  4S0  : 
but  see  Brady  v.  Ball,  14  Ind.  317. 

10  Ozburn  v.  Adams,  70  111.  2')2  ;  generally  Rossell  v.  Cottom,  31  Pa. 
St.  525  ;  Barnum  v.  Vandusen,  Ifi  Conn.  200  ;  Jack  v.  Hudnall,  25  Ohio 
St.  2.5fi. 

11  Tracy  v.  Cloyd,  10  W.  Va.  19. 

12  Andrews  v.  Pratt,  44  Cal.  3n  ;  generally  Crane  v.  Hirshfelder,  17 
Cal.  470  ;  Porter  ;-.  Fletcher,  25  Minn.  493. 

13  Stiles  r.  White,  11  Met.  35^;  generally  National  Trust  Co.  i: 
Gleason,  77  N.  Y.  402  ;  Cramer  r.  Hernstadt,  41  Tex.  615  ;  Robinson  r. 
Davis.  11  N.  J.  Eq.  302. 

14  Cramer  v.  Hernstadt.  41  Tex.  615. 

15  Lull  ?•.  Fox  &  Wis.  Imp.  Co.  10  Wis.  101  :  generally  Sellick  r. 
Hall,  47  Conn.  274  ;  Cobb  v.  Smith,  38  Wis.  31  ;  Clark  v.  Frv,  8  Ohio  St. 
:?73. 

16  Richardson  v.  Reed,  4  Grav,  441 ;  but  see  Allen  i\  Crarv,  10 
Wend.  MJ  :  Esty  ?•.  Love,  .32  Vt.  745. 

17  Esty  1-.  Love,  32  Vt.  745. 


^  99  JOINDEK   OF   PARTIES.  282 

IS  Greer  v.  Mezes,  24  How.  277 ;  generally  Gibbons  v.  Martin,  4 
Sawv.  206 ;  Fosgate  v.  Herkimer  M.  &  H.  Co.  14  N.  Y.  580 ;  compare 
Lewis  V.  Adams  61  Ga.  5.=>9 ;  and  see  also  Kerr  v.  Phillips,  5  X.  J.  L. 
820 ;  Fosdick  v.  Gooding,  1  Me.  30  ;  L,you  v.  Page,  21  Mo.  104. 

§  99.  Who  may  be  joined  as  defendants  in  suits  in  equity. 
—  It  ii  a  I'ulo  in  equity  that  all  p.rsons  slioukl  be  made  partii  s 
defendant  whose  i)resence  is  necessary  to  a  complete  judgment 
Avitli  respect  to  the  interests  involved  under  the  issues  raised 
Ly  the  pleadings. ^  It  is  no  objection  to  the  joinder  of  defend- 
ants that  thty  have  no  identity  of  interests  to  be  affected  by 
the  judgment. 2  When  defendants  hold  certiticates  of  title  to 
laud  having  their  origin  in  and  based  upon  the  same  general 
proceedings  which  are  sought  to  be  set  aside,  they  are  properly 
joined.^  When  land  conveyed  by  deed  absolute  on  its  face  is 
sought  to  be  recovered  on  the  ground  that  the  deed  was  in  fact 
given  as  security  for  money  loaned,  subsequent  purchasers 
who  have  taken  with  notice  of  plaintiff's  equity  may  be  joined 
as  defendants.-*  In  an  action  to  enforce  and  declare  an  implied 
trust  in  relation  to  lands,  all  jDcrsons  who  claim  to  be  entitled 
to  a  portion  of  the  trust  estate  arc  properly  made  defendants. ^ 
On  a  contract  to  do  certain  work  for  two  persons,  one  cf  them 
cannot  have  relief  in  equity  against  the  contractor  without 
making  the  other  a  party  to  the  suit,  or  stating  an  excuse  for 
not  doing  so.''  The  holder  of  a  nott;  secured  by  mortgage  may, 
in  a  single  action,  demand  and  have  a  judgment  against  all  the 
makers  of  the  note,  and  a  sale  of  the  mortgaged  premises, 
although  the  mortgage  was  executed  by  only  a  part  of  the 
makers  of  the  note.^ 

1  Green  v.  Milbank,  3  Abb.  X.  C.  148  ;  generallv  Haines  v.  Hollis- 
tcr.  64  X.  V.  3  ;  Schwoerer  v.  Boylston  M.  Asso.  !)9  Mass.  295  ;  Eureka 
Marble  Co.  v.  Windsor  Manuf.  Co.  47  Vt.  446  :  Forman  v.  Rodgers,  1 
Marsh.  A.  K.  427. 

2  Teas  v.  McDonald,  13  Tex.  353  ;  see  Boyd  v.  Swing,  3S  Miss.  197. 

3  AVatkins  r.  Milwaukee,  52  Wis.  102  ;  generallv  Ho\<-ss  v.  Moodv, 
14  Fla.  .5;) ;  North  r.  Brad  way,  9  Minn.  185  ;  and  see  M'eiss  r.  Bethel,  8 
Or  eg.  523. 

4  Webber  v.  Taylor,  5  Jones  Eq.  736. 

5  Jenkins  v.  Frink,  30  Cal.  535. 

0    Inhts.  of  Xew  Braintree  v.  Southworth,  4  Gray,  304. 
,.  Ir^\'"7  r.SafiFord,  19  Ohio  St.  .587;  generally  Dederick  ;•.  Barber, 
44  3rich.  20  ;  Eastman  v.  Turman,  24  Cal.  C82  ;  Fond  du  lac  Harrow 
Co.  V.  HaskiDs,  51  Wis.  136. 


233  2USJ0IXDER   A>-D   >-ON-JOI>"UEE.  ?    ICO 


CHAPTER  XY. 

OF   THE   inS-JOIXDER   A>'D   XON'-JOINDER  OF   PAKTIES,   AltEKDrXEXT 
AND   NEW   PABTIES. 

2  100.    Misjoinder  and  uo:i-joiiid8r.  how  tho  defect  may  be   t:ik?n 

advantage  of. 
§  101.    Who  may  take  advantage  of  a  defect  of  parties. 
'i  102.    Generally  of  defect  of  parties  plaintiflf.  of  amendment. 
'i  10!.    Generally  of  defect  of  parties  defendant,  of  ameudmer.t. 
'i  104.    Generally  of  new  parties. 

^  100.  Misjoinder  and  ncn-j binder  — How  tiie  defect  may 
be  taksn  advantage  cf.  —  TTlicn  it  appears  upon  tlic  face  of  the 
complaint  tliat  tliere  has  been  a  misjoinder  of  parties  plaintiff, 
the  objection  must  be  taken  advantage  of  by  demurrer.^  If 
the  facts  stated  show  no  cause  of  action  against  the  defendant 
in  favor  of  one  of  the  plaiuiifEj,  defendant  may  demur  as  to 
such  plaintiff.'^  When  parties  have  no  common  interest,  but 
assert  several  and  distinct  interests,  a  demurrer  for  misjoinder 
will  lie.^  A  misjoinder  of  parties  plaintiff  may  be  reached  by 
a  motion  to  elect  which  of  them  will  proceed  and  prosecute  the 
action.*  "When  a  misjoinder  of  parties  plaintiff  docs  not  app  ar 
upon  the  face  of  the  complaint,  and  the  objection  is  not  talicn 
by  the  answer,  it  is  deemed  to  be  waived;^  if  not  taken  by 
demurrer  or  answer  the  objection  is  waived."  It  cannot  be 
taken  advantage  of  by  instruction."  or  by  demurrer  to  the 
answer.*^  "When  the  defect  of  want  of  a  ijroper  party  to  the 
action  is  patent  upon  the  face  of  the  petition,  the  objection 
must  be  raised  by  demurrer  ;  ^  if  it  is  not  patent  from  the  face 
of  the  bill  that  necessary  parties  have  been  omitted,  the  objec- 
tion can  be  raised  only  by  plea  and  answer,  showing  who  are  the 
necessary  parties.^"  In  actions  ex  delicto  the  non-joinder  of  a 
party  plaintiff  can  only  be  taken  advantage  of  by  plea  in  abate- 
ment,!^  and  cannot  be  taken  advantage  of  upon  the  trial  other, 
wise  than  in  mitigation  of  damages. ^^    In  actions  ex  contractu 


g    100  MISJOINDER   AXD   NON-JOINDEE.  ,        284 

the  objection  of  non-joinder  of  parties  plaintiff  may  be  taken 
advantage  of  if  the  defect  appear  on  the  face  of  the  pleading 
by  demurrer,  motion  in  arrest  of  judgment,  or  on  error, ^^  if 
the  defect  does  not  appear  on  the  face  of  the  pleading,  by  plea 
in  abatement  or  as  a  ground  of  nonsuit.^*  There  are  four  dif- 
ferent modes  of  taking  an  objection  for  want  of  parties  to  a 
bill  — by  demurrer  on  record,  demurrer  ore  tenus,  by  plea,  and 
by  answer.i^  "When  a  bill  is  brought  by  plaintiff  for  himself 
and  all  others  having  a  common  interest,  and  the  complaint 
asked  that  the  money  sued  for  be  paid  into  court  for  the  benefit 
of  the  persons  interested  therein,  or  their  assigns;  held,  that 
as  the  question  of  the  assignment  was  not  involved  there  was 
no  defect  of  parties. ^^  a  demurrer  for  want  of  parties  must 
show  who  are  the  proper  parties  in  such  manner  as  to  point 
out  to  the  complainant  the  objection  to  his  bill,  and  thus 
enable  him  to  amend  by  adding  the  proper  parties. ^^  Unless 
the  objection  of  defect  of  parties  is  made  by  demurrer  or 
answer  it  is  deemed  to  be  waived.^"  An  objection  for  mis- 
joinder of  defendants  should  be  taken  either  by  demurrer  or  by 
answer,!''  it  n-jay  be  reached  by  answer  and  motion  in  arrest  of 
judgment.2"  If  it  appears  upon  the  face  of  the  petition  that 
there  is  a  non-joinder  of  parties  defendant,  objection  thereto 
should  be  made  by  demurrer  ;-i  if  it  does  not  so  appear  the 
objection  should  be  taken  advantage  of  by  answerj'-^^  it  cannot 
be  taken  advantage  of  by  a  motion  for  a  nonsuit. ^^  At  common 
law  the  objection  for  the  non-jciader  of  defendants  in  actions 
ex  contractu  could  only  be  pleaded  in  abatement,^*  except  when 
it  appears  in  the  petition  that  the  parties  omitted  are  living,  in 
which  case  defendant  may  object  without  reiterating  by  plea  in 
abatement  the  facts  alleged  by  the  plaintiff.'^^  "When  defend- 
ants have  in  one  action  abated  the  writ  by  pleading  other  per- 
sons joint  contractors  not  named  therein,  and  a  new  suit  is 
brought,  a  similar  plea  will  not  be  allowed  in  the  second  suit, 
even  if  put  in  by  the  new  defendants. ^e  The  general  rule  is 
that  if  several  persons  jointly  commit  a  tort  the  plaintiff  may 
sue  any  or  all  of  them  ;  if  he  sue  one,  the  defendant  can  neither 
plead  the  non-joinder  of  the  others  in  abatement  nor  in  bar.^' 


285  an&roiNDER  and  yox-.joisDER.  ^100 

1  Petree  t'.  Lansing,  66  Barb.  358  ;  Vaughn  ?'.  Lovejoy,  34  Ala.  441 : 
Parker  v.  Wiggins,  10  Kan.  424;  Wornack  ?•.  McAhren.  9  Ind.  6; 
Vaiden  v.  Stubblefield,  28  Gratt.  157  ;  Tilman  r.  Searcy,  5  Humph. 
+87  ;  Plunkett  v.  Kelly,  22  Ala.  657. 

2  Rumsev  v.  Lake,  55  How.  Pr.  340  ;  generallv  Little  v.  Bine,  5 
Jones  Eq.  10  ;  Horlge  v.  No.  Mo.  By.  1  Dill.  104  ;  Clarkson  v.  De  Pey- 
ster.  3  Paige,  3:36  ;  Hardee  Son  &  Co.  v.  Hall.  12  Bush,  328  ;  Tennant  r. 
Pflster,  51  Cal.  513  ;  Gerry  v.  Gerry,  11  Gray,  381. 

3  Hendrickson  v.  Wallace,  31  X.  J.  Eq.  6a5  ;  Ware  v.  Warwick,  48 
Ala.  297. 

4  Ind.  School  Dist.  v.  Ind.  School  Dist.  50  Iowa,  324. 

5  Hastings  v.  Stark,  36  Cal.  126 ;  and  S33  Tennant  v.  Pfistsr.  51 
Cal.  513. 

6  Rickey  r.  Tenbroeck,  63  Mo.  570  ;  Hier  r.  Staples,  51  X.  Y.  140. 

7  Lass  )■.  Eiselben,  50  Mo.  123. 

S  McEwen  v.  Hussey,  23  Ind.  395  ;  compare  Bouton  r.  Orr,  51 
Iowa,  475. 

9  State  i:  SappLngton,  68  Mo.  455  ;  Porter  v.  Clements.  3  Ark.  :3S2  ; 
Zimmerman  v.  Schoenfeldt,  3  Hun,  698  ;  Robinson  v.  Smith,  3  Paige. 
230. 

10  Robinson  v.  Smith.  3  Paige,  3.30  ;  generally  Story  v.  Levingston, 
13  Peters,  ;?75  :  Bay  State  Iron  Co.  r.  Goodall,  39  X.  H.  'i:U  ;  Pond  v. 
Clark,  24  Conn.  332  ;  Roberts  v.  Southern  Minn.  Ry.  Co.  18  Minn.  110  ; 
Lillie  r.  Case,  -54  Iowa,  182  ;  Webster  v.  Vandwenter,  6  Gray,  4:30. 

11  White  V.  Webb,  15  Conn.  305  ;  Boerum  r.  Tavlor,  19  Conn.  127  ; 
Edwards  r.  Hill,  11  111.  23  ;  Parker  v.  Wav,  15  X.  H.  50  ;  May  v.  W.  U. 
Tel.  Co.  112  Mass.  93  :  Putney  v.  Lapham,  10  Cush.  235  ;  Cooper  v.  Rail- 
way, 49  X'.  H.  212  ;  Lathrop  r.  Arnold,  25  Me.  VSS. 

12  Edwards  v.  Hill,  11  111.  23:  generally  Jones  r.  Lowell,  35  Me, 
540 ;  Putney  r.  Lapham,  10  Cush.  2:34  ;  Webber  v.  Merrill, :«  X.  H.  207  ; 
Cooper  r.  Railway,  49  X.  H.  212  ;  compare  May  v.  .Slade,  24  Tex.  207  ; 
Backinstoss  v.  Stabler,  m  Pa.  St.  254  ;  Deal  v.  Bogne,20  Pa.  St.  2:K  ; 
Courts  v.  Happle,49  Ala.  259  :  Hart  i'.  Fitzgerald,  2  Mass.  511 ;  and  see 
Branch  r.  Doane,  17  Conn.  415. 

13  Pitkin  r.  Roby,  43  X.  H.  139  ;  Crump  v.  McKay,  8  Jones,  34  ; 
Hicks  i:  Branton,  21  Ark.  189. 

14  Pitkin  r.  Robv,  43  X.  H.  139  ;  generallv  Ela  v.  Rand,  4  X'.  H.  EOS  ; 
White  V.  Cusliiiig,  :J0  Me.  269  ;  White  v.  Curtis,  3.5  Me.  5.V4 ;  see  Ball  r. 
Cou.  F.  Co.  ;32  X.  J.  L.  102. 

15  Gordon  v.  Holland,  3  Ired.  Eq.  363;  generallv  Stillwell  v. 
M'X'erly,  2  X.  J.  Eq.  30.5. 

16  Blair  v.  Shelbv  Co.  A.  &  J.  &  S.  Assoc.  23  Ind.  175  ;  generallv 
Parish  V.  Sloan,  3  Ired.  Eq.  609. 

17  Dias  r.  Bouchaud,  10  Paige,  454. 

18  Reugger  v.  Lindenberger,  53  Mo.  365  ;  Dunn  r.  Han.  &  St.  Joe 
Rv.  Co.  6S  Mo.  279  ;  Bouton  v.  Orr,  51  Iowa.  475  ;  McE%von  v.  Hussev, 
23  Ind.  ;395  ;  Davis  v.  Bechstein.  6J  X*.  Y.  443  ;  Chaffee  v.  Morss,  67  Barb. 
253;  Home  Ins.  Co.  v.  Pa.  Rv.  Co.  11  Hun.  182;  Astie  »•.  L&rming,  .5:3 
How.  Pr.  :397;  Risley  v.  Wightnian,  13  Hun,  165;  Lillie  v.  Casts  54 
Iowa.  182:  Spencer  ?-.  Van  Cott,2  rt:ih,:342  ;  Snmm^TS  r.  Parish,  10 
Cal.  :3.50  ;  Gillam  v.  Sigman,  29  Cal.  6i[) ;  Potter  v.  Ellice,  48  X'.  Y.  :323  ; 
Parchen  v.  Peck,  2  Mo'it.  570  ;  Horstkotte  r.  Menier,  .50  Mo.  15!) ; 
Baldwin  v.  Canfield,  26  Minn.  .>S  ;  Danghdrill  v.  Helms.  5-3  Ahi.  65; 
Adger  r.  Pringle,  11  S.  C.  543  :  Alloy  v.  Carroll,  G  Heisk.  2:«  ;  Wi:ig  v. 
Cooper,  37  Vt.  186. 


§    101  MISJOINDER   AND   NON-JOINDEK.  286' 

19  Warner  v.  Wilson,  4  Cal.  313  ;  Gillman  v.  Sigman,  29  Cal.  C39  ; 
Brown  v.  Kobinson.  6  La.  An.  423  ;  Foote  v.  Cincinnati,  9  Ohio,  34  ; 
Moore  v.  Wilson,  I  Utah,  187  :  East  R.  T.  Co.  v.  Xagle,,T8  Ga.  478  ;  but 
see  King  v.  King,  40  Iowa,  120  ;  see  also  Homes  v.  Hollister,  64  X.  Y. 
3  ;  compare  Hill  v.  Marsh,  46  Ind.  219. 

20  Cogswell  V.  Murphy,  46  Iowa,  45. 

21  Donner  v.  Int.  P.  &  Pub.  Co.  70  Mo,  175 ;  Nell  v.  Trustees,  31 
Ohio  St.  1") ;  .see  Hill  v.  Marsh,  46  Ind.  219  ;  White  v.  Curtis,  2  Gray, 
4?2  ;  Chapman  v.  Hamilton,  19  Ala.  125. 

22  Donner  v.  Int.  P.  &  Pub.  Co.  70  Mo.  175  ;  Pavisich  v.  Bean,  48  Cal. 
365  ;  Durand  v.  Hankerson,  39  N.  Y.  291. 

23  Pavisich  v.  Bean,  4S  Cal.  265. 

24  Davis  v.  Willis,  47  Tex.  163  ;  Johnson  v.  Ransom,  24  Conn.  535  ; 
Simonds  r.  Turner,  120  Mass.  329  ;  Leonard  v.  Sheidel,  104  Mass.  359  ; 
Mershon  v.  Hobensack,  23  N.  J.  L.  5S1  ;  Exum  v.  Davis,  10  Rich.  359  ; 
Schwartz's  Estate.  14  Pa.  St.  44  ;  Collins  v.  Smith,  78  Pa.  St.  425  ;  Bos- 
well  V,  Morton,  20  Ala.  2i5  ;  Miller  r.  Finn.  1  Neb.  289  ;  Hyde  v. 
Howes,  2  Bradw.  141  ;  Holyoke  v.  Loud,  69  Me.  61  ;  compare  Farwell  ?-. 
Davis,  66  Barb.  77  ;  generallv  Mitchell  v.  Chambers,  43  Mich.  152  ; 
Holcomb  V.  Tiffany,  3S  Conn.  272  ;  Sittig  v.  Birkestack,  38  Md.  163  ;  see 
United  States  v.  Gillespie,  11  The  Reporter,  767. 

25  Johnson  v.  Ranson,  24  Conn.  535 ;  Davis  v.  Willis,  47  Tex.  163  ; 
compare  Thomp.son  v.  Strain,  18  111.  370. 

26  Witmer  v.  Schlatter,  15  Serg.  &  R.  151. 

27  Lov/  V.  Mumford,  14  Johns.  42G  ;  Buddington  v.  Shearer,  22  Pick. 


§  101.  Who  may  take  advantage  of  a  defect  cf  parties.— 
"When  there  is  a  ini?jointIer  of  parties  plaintiff  all  the  defend- 
ants may  demur  ;  ^  but  if  the  misjoinder  is  of  parties  defendant 
those  only  can  demur  who  are  improperly  joined.^  One  whose 
duty  it  is  to  bring  other  parties  before  the  court  cannot  com- 
plain by  reason  of  their  non-joinder.^  An  irregularity  in  suing 
in  the  names  of  the  members  of  the  board  of  commissioners 
of  public  buildings  Avhen  the  suit  should  have  been  in  the  name 
of  the  attorney-general,  on  the  relation  of  the  plaintiffs,  can 
only  be  taken  advantage  of  by  the  defendant  himself,  and  not 
by  the  court  of  its  owm  motion.*  When  plaintiff  in  an  action 
of  assumpsit  amends  his  declaration  by  striking  out  the  names 
of  a  part  of  the  defendants,  the  remaining  defendants,  to  avail 
themselves  of  the  non-joinder,  must  plead  it  in  abatement.^ 
In  a  suit  on  an  executor's  bond,  when  one  of  the  principals  and 
one  of  the  sureties  are  dead,  the  surviving  principal  cannot 
object  to  the  non-joinder  of  the  legal  rciDresentatives  of  the 
deceased  executor,  or  of  the  deceased  surety.'^^  A  party  defend- 


287  AMEXDilEXT.  2   102 

ant  who  denies  the  plaintiff's  right,  and  insists  upon  his  own 
right  to  the  fund  sought,  cannot  raise  the  objection  that  an 
intermediate  party  through  whom  the  fund  came  should  be 
made  a  party.' 

1  Christian  r.  Crocker,  2o  Ark.  .320. 

2  Garland  ;■.  Nunn,  11  Ark.  730  ;  Christian  v.  Crocker,  25  Ark.  .329  ; 
Lewis  r.  Williams,  3  Minn.  li>4  ;  Goff  v.  Mav,  33  Ind.  23.) ;  Horton  v. 
Slerlge,  29  Ala.  498  ;  Gutri:lge  v.  Vanatta,  27  Ohio  St.  370  ;  Patterson  i\ 
Patterson,  1  Hayw.  rx.  C.)  l&S  ;  McCormac  v.  Wiggins,  84  X.  C.  2S0 ; 
Ch?rrv  r.  Munro,  2  Barb.  Ch.  627  ;  Crosby  v.  Berger,  4  Edw.  Ch.  210  ; 
Eice  v.  Hunt,  12  Heisk.  -343  ;  Territory  v.  Hildorbrancl,  2  Mont.  423  ; 
Hopson  V.  Harrell,  56  iliss.  203  ;  Miller  v.  Jamison,  24  2^.  J.  Eq.  43 ; 
Hoose  V.  Perkins,  9  Neb.  30[) ;  Cocke  r.  Evans.  9  Yerg.  2W. 

3  Clough  r.  Clough,  3  Mon.  B.  6.5. 

f     4    Commrs.  of  Pub.  Bldgs.  v.  Andrews,  10  Rich.  Eq.  10. 

5  BlLss  V.  Bliss,  12  Met.  2<57 ;  generally  Wilson  v.  Xavers,  23  Pick. 
20  ;  Davis  v.  Willis,  47  Tex.  162. 

6  Stephenson  r.  McFadden.  42  Tox.  323  :  and  see  generallv  Walker 
V.  Collins,  22  Tex.  189. 

7  Crosby  v.  Berger,  3  Edw.  Ch.  .345 ;  generally  Commonvv.  v. 
rraukfort.  13  Bush,  ISA. 

'■"  §102.  Generallyof  defect  of  parties  plaintiff— Cf  amend- 
ment.—  A  misjoinder  of  parties  plaintiti  in  assumpsit  is  fatal 
to  the  action,  no  judgment  can  be  rendered  in  their  favor 
if  the  evidence  at  the  trial  fails  to  establish  a  joint  cause  of 
action. 1  A  cause  of  action  in  favcr  of  each  or  either  of  two 
plaintiffs  is  no  cause  of  action  in  favor  of  both;  and  the  defect 
of  joining  the  two  plaintiffs  may  be  met  either  by  demurrer  or 
answer.-  The  legal  and  equitable  owner  of  a  not?  cannot  be 
joined  m  an  action  thereon.^  In  an  action  of  tort,  if  the  facts 
stated  in  the  complaint  show  no  cause  of  action  against  the 
defendant,  in  favor  of  one  of  the  plaintiflEi,  the  defect  may  be 
taken  advantage  of  by  demuri-er,  or  may  be  raised  at  the  trial,  •♦ 
and  the  action  would  fail ;  but  by  statute  judgment  may  be 
given  for  the  party  plaintiff  proving  a  cause  of  action,  and 
against  the  party  plaintiff  having  none  ;^  upon  appeal  a  judg- 
ment in  favor  of  both  will  be  reversed ;  ^  upon  remaudment  of 
the  case  the  improper  party  may  be  dismissed  out  of  the  case, 
and  the  cause  proceed  in  the  name  of  the  party  in  intertst.^ 
The  general  riile  in  equity  is  that  all  the  parties  complainant 
must  be  entitled  to  relief,  or  the  suit  will  fail ;  if  one  is  barred 


^  132  amexd:«ent.  233 

by  laches,  lapse  of  time,  or  the  Statute  of  Limitations,  no 
relief  can  be  granted  to  the  others ; «  this  rule,  however,  Las 
never  been  applied  with  any  stringency  to  creditor's  bills.'-* 
When  there  is  no  community  of  interest  between  co-jDlaintififs, 
although  the  rights  and  relief  sought  are  of  the  same  character, 
the  defect  upon  exception  taken  will  be  fatal.  J"  As  a  rule 
objections  to  the  misjoinder  of  parties  plaintiff  must  be  made 
upon  the  pleadings,  and  will  not  be  regarded  when  made  at  the 
hearing.ii  When  leave  is  asked  for  the  first  time  at  the  hear- 
ing to  amend  the  pkadings,  it  is  in  the  discretion  of  the  chan- 
cellor whether  to  allow  it  or  not ;  '^  to  authorize  a  dismissal  of 
the  bill  at  this  stage  of  the  proceedings  the  interests  of  com- 
plainants must  be  so  diverse  that  they  cannot  be  included  in 
one  decree,  or  differ  so  widely  as  materially  to  affcct  tile  pro- 
priety of  such  decree. 1-^  When  a  part  of  the  demandants  who 
join  in  a  Avrit  of  entry  are  not  entitled  to  recover,  the  action 
must  fail  unless  the  writ  be  amended  by  striking  out  the  names 
of  such  parties  before  verdict;^'  so  in  any  form  of  action  a 
stranger  having  no  right  to  sue  cannot  be  joined  with  others 
who  have ;  if  so  joined,  the  proper  practice  would  seem  to  be  to 
move  to  strko  out  such  party. '^  When  parties  having  separate 
and  distinct  interests  unite  in  a  bill  in  equity,  if  one  only  is 
entitled  to  relief  the  bill  may  be  amended,  leave  being  granted 
by  striking  out  the  name  of  the  person  not  entitled  to  relief;  "^ 
so  when  a  party  is  made  co-plaintiff,  without  his  privity  or  con- 
sent, the  proper  motion  is,  that  his  name  be  stricken  out,  net 
that  the  bill  be  dismissed,  even  as  to  him.^'  When  the  defend- 
ant has  severed  a  joint  contract,  the  non-joinder  of  both  con- 
tractors as  plaintiffs  in  an  action  thereon  is  not  ground  for 
arresting  judgment.^**  When  an  answer  alleging  a  elefect  of 
parties  })l:iintiff  is  in  the  nature  of  a  plea  in  abatement,  an 
issue  to  be  tried  is  presented,  and  the  court  cannot  upon  the 
mere  filing  of  the  answer  dismiss  the  cause  of  action.''*  In 
actions  of  tort  non-joinder  of  parties  plaintiff  is  matter  of 
abatement  only;"-^**  at  common  law  neither  in  actions  of  con- 
tract nor  for  torts  could  new  parties  plaintiff  be  added  by  way 
of  amendment. 2i    In  a  court  of  equity  the  want  of  proper 


2:9  A3IES-I»3rE>-T.  ?  1C2 

parties  may  bo  taken  at  any  time  during  the  progress  of  the 
cause,  and  even  in  the  appellate  court ;  --  hut  as  a  rule  if  the 
objection  is  not  made  by  demurrer  or  answer  it  cannot  be  at 
the  hearing;  2^  it  is  not  error  to  refuse  to  dismiss  a  cause  on 
motion  for  want  of  parties,  though  it  may  be  error  to  decree 
finally  without  them ;  21  after  demurrer  sustained,  -leave  was 
properly  granted  to  amend  by  adding  new  parties  ;  -^  the  non- 
joinder of  parties,  whose  absence  simply  renders  the  defendant 
liabb  to  a  revival  of  litigation,  cannot,  as  a  general  rule,  be 
taken  advantage  of  at  the  final  hearing  ;  2«  but  if  the  interest  of 
absent  parties  be  of  such  a  nature  that  justice  cannot  be  done 
without  their  presence,  the  court  may  dismiss  the  bill  without 
prejudice,  or  may  retain  it  for  amendment  to  bring  in  the 
necessary  parties. 2^  The  chancellor  may  notice  the  defect  01 
parties  even  at  the  hearing,  and  of  his  own  motion  order  it  to 
stand  over,  on  leave  to  amend,  cr  may  dismiss  it  without 
prejudice  ;  ^s  the  better  practice  is,  when  the  defect  of  parties  has 
not  been  noticed  until  the  hearing,  not  to  dismiss  the  bill,  but 
to  order  it  to  stand  over  to  make  the  necessary  parties, ^^ 
within  a  reasonable  time ;  and  if  plaintifT  fails  to  do  so,  the  bill 
should  then  be  dismissed.''"  The  pvactice  of  allowing  judgment 
creditors  to  come  in  and  make  themselves  parties  to  a  creditor's 
bill  is  well  settled,  and  when  no  objection  is  made,  that  cred- 
itors have  come  in  without  having  obtained  an  order  of  court 
for  that  purpose,  the  proceedings  will  not  be  reversed  on  that 
ground.^^  An  obcction  for  a  d:fect  of  parties  should  not  be 
made  for  the  first  time  in  the  supreme  court.^'^  x  bill  will  not 
bo  dismissed  for  want  of  indispensiblo  parties  unless  the  objec- 
tion was  taken  in  the  court  below,  and  complanant  refused  to 
join  them  by  an  amendment  of  his  bill,  in  that  case  the  suit 
may  be  dismissed  without  prejudic?,^'^  or  the  decree  bo  re- 
versed, and  cause  remanded  with  leave  to  amend.^' 

1  Erent  v.  Tivebaugh,  12  Mou.  B.  &3  ;  Bell  v.  Allen,  .>T  Ale,.  I2S 
Masters  r.  Freei  jan,  17  Ohio  St.  324  ;  Porter  r.  IJickernuin,  11  Gray, 
•JS2 ;  compare  Dodge  v.  Wilkinson,  -i  ZMet.  206;  see  also  Murphy  v. 

Crr,  .S2I11.492. 

2  Masters  v.  Freeman,  17  Ohio  St.  326. 

3  Curtis  V.  Sprague.  51  Cal.  241. 

Parties— 25 


g    102  AMENDMENT.  2D0 

4  raiiiiso3'  V.  Lake,  "w  How.  Pr.  S40  ;  gonerally  C.  <fe  N.  V/.  Hz'-  Co. 
V.  Uutton,  (W  111.  410  ;  Gerry  v.  Gerry,  11  Gray,  381  ;  Rowe  v.  Bacigal- 
luppi,  21  C'al.  635  ;  Murphy  v.  Orr,  32  III.  4!)2. 

5  Rumsevt'.  Lake,  55  How.  Pr.  340;  see  Fuller  v.  Fuller,  5  Hun, 
5J7  ;  but  conipare  Pettibone  v.  Phelps,  13  Conn.  450  ;  generally  Rowe 
V.  Bacigalluppi,  21  Cal.  635. 

6  Oitv  of  Chicago  v.  Speer,  66  111.  150  ;  compare  Colvill  v.  Lang- 
do!i,  22  ilinn.  506;  generally  Puller  v.  Fuller,  5  Hun,  596;  Pettibone 
V.  Phelps,  13  Conn.  450. 

7  C.  tt  N.  AV.  Ry.  Co.  v.  Button,  GS  111.  411 ;  generally  Colvill  v. 
Langdon,  22  Minn.  560. 

8  Janios  V.  James,  55  Ala.  533  ;  Dunklin  v.  Wilson,  64  Ala.  170  ;  gen- 
erally JU-()U<?hton  V.  Mitchell,  64  Al;i.  220  ;  Johnson  v.  Murphy,  60  Ala. 
2!»2  ;  iSchalfer  v.  Lavretta,  57  Ala.  10  ;  Jones  v.  Quinnipiack  Bank,  2J 
Conn.  45. 

9  Colgin  V.  Redman,  20  Ala.  657. 

10  Favrot  r.  Parish  of  E.  Bat.  Rouge,  30  La.  An.  600;  generally 
Broughton  v.  Bank  of  Orleans,  2  Barb.  Ch.  405. 

11  Bartlott  r.  Bovd,  34  Vt.  259  ;  Trustees  cf  AVatertown  v.  Cowen, 
4  PaigL',  515  ;  Michah  v.  Wyatt,  21  Ala.  826 

12  Michan  v.  Wyatt,  21  Ala.  827. 

13  Michan  v.  Wyatt,  21  Ala.  827  ;  Colgin  i\  Redman,  20  Ala.  6r:7. 

14  Chandler  v.  Simmons,  07  Mass.  5:5  ;  Thayer  v.  Hollis.  3  Met.  570  ; 
compare  Roach  v.  Randall,  45  Me.  444  ;  Gilbert  v.  Sutlifi",  3  Ohio  St 
14^  ;  Key  v.  Hord,  4  Munf.  485. 

15  Lillard  v.  Rucker,  9  Yerg.  73  ;  but  see  Roach  v.  Randall,  45  Me. 
444  ;  generally  Porter  v.  Dickerman,  11  Gray,  433  ;  Butcher  v.  Carlton, 
11  Iowa,  47  ;  Key  v.  Hord,  4  Munf.  435. 

16  Reybold  r.  Herd  man,  2  Del.  Ch.  37. 

17  So.  Life  Ins.  &  T.  Co.  v.  Lanier,  5  Fla.  K3. 

18  Eagle  Manuf.  Co.  v.  Wise,  40  Ga.  12:) ;  generally  Stiite  v.  Ilessel- 
meyer,  :u  Mo.  78. 

10  McCormick  v.  Blossom,  40  Iowa,  1ZS;  generally  Holliniau  v 
Rogers,  0  Tex.  07. 

20  Gerry  r.  Gerry,  11  Gray,  331. 

21  Ayer  7'.  Gleason,  00  Me.  203  ;  generally  AVinslow  v.  l^Ierrill,  H 
Me.  127  ;  Sherman  v.  Parish,  53  N.  Y.  480. 

22  Carson  v.  Robertson,  Chase  Dec.  408  ;  Potter  v.  Stevens,  40  Mo. 
232  ;  W.  Lake  Co.  v.  AVorster,  20  N.  II.  442. 

23  Page  r.  Olcott,  28  Vt.  460  ;  generally  Potter  v.  Stevens,  40  Mo. 
233;  W.  Lake  Co.  v.  Worster,  2!)  N.  H.  443;  Carson  v.  Robertson, 
Chase  Dec.  409  ;  Eustice  v.  Holmes,  52  Miss.  312  ;  Featherston  v.  Nor- 
ris,  7  S.  C.  4r<-l ;  McConnell  v.  Brayner,  63  Mo.  463  ;  Smith  v.  Bartholo- 
meu,42  Vt.  :J69. 

24  Morrison  v.  McElrath,  4  Dev.  &  B.  477 ;  generally  Wescott  v. 
Minn.  Min.  Co.  23  Mich.  103  ;  see  Shields  v.  Barrow.  17  How.  130  ;  Coy 
V.  JMason,  17  How.  580  ;  Kendig  v.  Dean,  07  U.  S.  425^ 

25  Plumley  v.  Plumley,  8  ]Sr.  J.  Eq.  511 ;  generally  Gray  v.  Hays,  7 
Humph.  5.S0  ;  Praiiklin  v.  Franklin,  2  Swan,  522. 

26  Voorhees  v.  Mclick,  25  N.  J.  Eq.  525  ;  see  Belton  v.  Apperson.  26 
Gratt.  221. 


291  AMENDMENT.  §    103 

27  Kusticc  V.  Ilolmes,  52  Miss.  312  ;  Bailey  v.  Trammell,  27  Tex.  :?26  ; 
Bainbridge  v.  Owen,  2  Marsh.  J.  J.  466;  Churchill  v.  Triplette,  6 
Marsh.  J.  J.  ol8  ;  Champlin  ?'.  Champlin,  4  Edw.  Ch.  22.1 ;  Lord  v. 
UndercluMck,  1  Sand.  Ch.  50  ;  Gibbes  v.  Holmes,  10  Rieh.  Eq.  4^1 ;  Mil- 
ler V.  McCun,  7  Paigo,  457  ;  see  Bunce  v.  Gallagher,  5  Blatchf.  4:^0. 

28  Goodman  f.  Benham,  16  Ala.  631 ;  generally  Van  Keuren  v.  Mc- 
Laughlin, 21  X.  J.  Eq.  164. 

29  Monroe  v.  Buchanan,  27  Tex.  247  ;  generally  "Welton  r.  Ilutton, 
9  W.  Va.  &4:J ;  Howoll  v.  Peoria,  !;0  111.  lOS  ;  Hayden  v.  Marmuduiie,  19 
Mo.  401 ;  Jonnson  v.  Chandler,  14  Mon.  B.  .5iJ  ;  Hutchinson  v.  Reed,  I 
Hofr.  Ch.  320  ;  Webber  v.  Taylor,  5  Jones  Eq.  37  ;  Bunco  v.  Gallagher, 
5  Blatchf.  490. 

30  "Welton  v.  Hutton,  9  W.  Va.  343  ;  and  see  Rice  v.  Uouaphan, 
4  Mon.  B.  123. 

31  Mvers  v.  Faun,  5  Wall.  205;  and  see  Champlin  ?>.  Champlin,  4 
Edw.  Ch.  223  ;  Potter  v.  Holden,  31  Conn.  3;!.5. 

;^  Kerr  v.  Bell,  44  Mo.  124  ;  Long  v.  De  Bevoix,  31  Ark.  481  ;  Black- 
burn V.  :Morton,  IS  Ark.  :iS.5. 

'33  Andrews?'.  Hobson,23  Ala.  232  ;  generally  Berrvman  v.  Graham, 
21  X.  J.  Eq.  378  ;  McCuliy  i\  Chapman,  58  Ala.  328  ;  Watson  v.  Gates, 
53  Ala.  64J. 

34  Watson  v.  Gates,  53  Ala.  C43  ;  Anderson  v.  Anderson,  1  Hen.  & 
M.  13. 

^  1C3.  Generally  oT  defect  of  parties  defandant,  of  amend- 
ment.—  A  court  of  equity  will  not  suffer  its  jurisdiction  to  be 
ousted  by  the  mere  joinder  or  non-joinder  of  formal  parties, 
but  will  rather  pi-ocecd  without  them,  and  decide  upon  the 
merits  of  the  case  between  the  parties  who  have  tlie  real  inter- 
ests before  it,  whenever  it  can  be  done  without  prejudice  to  the 
rights  of  others.^  A  person  who  merely  proceeds  to  collect  an 
execution  placed  in  his  hands  as  an  officer  ought  not  to  be 
made  a  party  to  a  bill  of  injunction  ;  if  he  is,  the  bill  will 
be  dismissed  as  to  him  with  costs. ^  When  two  persons  who  are 
not  jointly  liable  are  joined  as  defendants  in  one  action,  merely 
for  the  purpose  of  acquiring  jurisdiction  over  one  who  is  a  non- 
resident, and  the  misjoinder  appears  upon  the  face  of  the  peti- 
tion, the  question  of  jurisdiction  may  be  raised  at  any  timc,^  it 
is  properly  pleaded  in  abatement.'*  Several  causes  of  action  can 
only  be  united  in  one  complaint,  when  each  cause  affects  all  the 
parties  to  the  action,  and  they  must  be  in  favor  of  all  the  plaint- 
iffs, and  against  all  the  defendants.^  In  an  action  upon  con- 
tract against  several,  it  must  appear  upon  the  face  of  the 
pleading  that  the  contract  is  joint,  and  that  fact  must  be  jiroved 
at  the  trial ;  ^f  too  many  parties  are  made  defendant.-,  and  the 


g  103  AMENDMENT.  292 

Objection  appear  on  the  pleadings,  defendant  may  demur,  move 
in  arrest  of  judgment,  or  support  a  writ  of  error  ;  if  the  defect 
doss  not  appear  upon  the  face  of  the  pleadings  plaintiff  may  be 
nonsuited  at  the  trial ;  '^  he  cannot  amend  at  the  trial  and  take 
judgment  against  the  defendants  who  are  liable  ;  ^  but  by  stat- 
ute plaintiff  may  obtain  leave  to  amend  by  striking  out  the 
names  of  defendants  not  liable,  and  proceed  as  to  the  others.^ 
In  all  actions  for  tort  there  can  be  no  objection  that  all  the  tort 
feasors  are  not  joined,  or  that  persons  are  joined  as  defendants 
who  are  not  guilty,  but  a  recovery  may  be  had  against  the  per- 
sons who  are  guilty,  and  an  acqiiittal  of  those  improperly 
sued/**  A  party  may  be  enjoined  against  a  tortious  act,  even  if 
other  parties  interested  with  him  are  within  the  jurisdiction 
and  are  not  joined  ;  so  if  such  other  parties  are  out  of  the  jiiris- 
diction  of  the  court. ^^  The  general  rule  in  actions  ex  contractu 
is,  that  plaintiff  must  join  as  parties  defenelant  all  who  are 
jointly  liable  iipon  the  contract  sueel  on,  and  if  he  does  not  the 
non-joinder  being  pleaded  in  abatement  is  fatal  to  a  recovery  ;  ^^ 
if  the  pica  is  not  interposed  the  objection  is  waived;^-  but 
these  common  law  rules  as  to  joint  and  several  liability  upon 
contracts  are  in  effect  abolished  by  the  provisions  of  the  Code  ;  ^^ 
to  make  too  many  defendants  is  generally  immaterial,  but  to 
leave  one  out  who  ought  to  be  joined  is  generally  fatal  upon 
exception  taken,  iniless  the  defect  is  cured  by  amenelment.^* 
As  a  rule  no  error  can  be  predicated  upon  the  absence  of  proper 
parties  to  an  action  at  law  when  no  motion  is  made  to  make 
such  other  persons  parties.^^  In  a  suit  in  equity  the  fact  that 
a  person  liable  is  out  of  the  jurisdiction  of  the  court  is  usually 
a  sufficient  excuse  for  his  non-joinder;  so  if  he  be  dead,  was 
insolvent,  and  no  personal  representative  has  been  appointed, 
and  the  facts  appear  by  the  pleadings,  the  cause  will  proceed.^'' 
A  demurrer  for  want  of  parties  should  show  who  are  proper 
parties  defendant."  If  the  defect  appear  upon  the  face  of  the 
petition  a  demurrer  thereto  should  be  sustained.  i«  When 
amendment  is  not  a  matter  of  right  under  the  rules  the  grant- 
ing leave  to  amend  is  usually  a  matter  of  discretion,  br.t  it  is  not 
usual,  nor  is  it  proper,  for  a  court  of  chancery  to  dismiss  a  bill 


293  AilEND^TEXT.  I    103 

for  want  of  parties  defendant,  without  allowing  complainant 
leave  to  amend,  when  the  bill  is  not  demurred  to  upon 
that  ground,  and  the  defect  is  only  pointed  out  on  the 
argument ;  ^^  if  the  bill  makes  a  case  warranting'  relief  the 
cause  may,  upon  payment  of  all  costs,  stand  over  for  the 
purpose  of  amendment,  or  be  dismissed  without  prejudice. 2« 
If  there  be  an  omission  of  an  indispensible  party,  so  that 
a  complete  decree  cannot  be  made  without  him,  the  court 
will  of  its  own  motion  take  notice  of  the  fact  and  direct 
the  cause  to  stand  over,  in  order  that  such  new  party  may  be 
added, ^^  or  dismiss  the  bill  if  the  plaintiff  is  chargeable  with 
laches ;  ^^  but  the  court  will  not  pass  upon  the  merits  of  the 
case.2^  A  defect  of  parties  cannot  be  made  for  the  first  time  in 
the  supreme  court, ^^  unless  it  shall  appear  that  parties  are 
omitted  whose  rights  are  so  connected  with  the  subject-matter 
of  the  suit,  that  a  final  decision  cannot  be  made  without  mater- 
ially afi^cting  their  interests.^^  When  a  decree  is  reversed  for 
want  of  parties,  if  it  has  merits,  leave  will  be  granted  to  make 
the  necessary  parties,  otherwise  it  will  be  dismissed. ^*> 

1  AVormley  v.  Wormlev,  8  "Whsat.  451  ;  g^enerally  West  v.  Ran- 
dall, 2  Mason, 'l90  ;  White  v\  Delschneider,  1  Oreg.  257. 

2  Lackay  v.  Curtis,  G  Ired.  Eq.  201. 

3  Graham  7-.  Kip.go,  67  ilo.  325;  generallv  Capital  City  Bank  t'. 
Knox,  47  Mo.  3:3:^. ;  Jacobs  v.  Mellen,  14  Mass.  \U. 

4  Jacobs  V.  Mellen,  14  Mass.  134. 

5  Earle  v.  Scott,  50  How.  Pr.  508. 

G  Burr  &  Co.  v.  Ross,  19  Ark.  2-50  ;  compare  Walker  x\  M.  M.  Dock 
&  31.  Ins.  Co.  31  Ala.  530 ;  generally  Patterson  v.  Loughrldge,  42  X.  J. 
L.  2i ;  Rosenberg  i-.  Barrett,  2  Brad\v.  3S0. 

7  Burr  &  Co.  v.  Ross,  19  Ark.  250  ;  Fuller  v.  Miller,  53  Me.  41 ;  Mc- 
Lean V.  GrLswold.  22  111.  219. 

8  Cutts  V.  Havnes,  41  Me.  .5S0  ;  Fuller  c.  Miller,  5S  Me.  41  ;  Burnes 
V.  Ashworth.  72  X.  C.  407;  Buie  v.  Mechs.  B.  ct  L.  Assn.  74  X.  C.  121 ; 
Flanders  r.  Wt.  ^Itg.  Bank,  43  X.  H.  333  ;  and  see  Patterson  v.  Lough- 
ridge,  42  X.  J.  L,.  23. 

9  McLean  r.  Griswold.  22  111.  219 ;  generallv  Murphv  v.  Orr.  :B2  111. 
492;  Inhabitants  of  Milford  v.  Holbrook,  9  Allen.  22;  Boutelle  ?•. 
Xourse,  4  Mass.  432  ;  Burnham  r.  Webster,  5  Mass.  270  ;  Mandlebauni 
V.  Russell,  4  Xev.  555 ;  Wheeles  v.  Worcester,  10  Allen,  590. 

10  Florence  Sew.  M.  Co.  v.  G.  &  B.  S.  M.  Co.  110  Mass.  12. 

11  Page  V.  Brant.  13  111.  3S  ;  generally  McDonald  v.  Backus,  45  CaL 
283 ;  Urtou  v.  Hunter,  2  \V.  Va.  8f«. 

12  Williams  v.  Rogers,  14  Bush,  782;  Reed  v.  Wilson,  39  Me.  5S6; 
Tiger  v.  Lincoln,  1  Colo.  400  ;  compare  Merrill  v.  Coggill.  12  X.  H.  99. 


g   104  >'E"V\'   PARTIES.  294 

13    -Williams  v.  Rogers,  14  Bush,  782. 

1-1  Buie  V.  Mpchs.  B.  A  L.  Assn.  74  X.  C.  120;  generally  Burns  r. 
-Vshworth.  72  X.  V.  4r»7  ;  McDonald  v.  Backus,  45  Cal.  263 ;  Woodward 
r.  Ware,  o7  Me.  .tW  ;  White  v.  Curtis,  35  Me.  5."^. 

Li    Grim  v.  Semple,  39  Iowa,  572. 

16  Shivevi'.  Jenkins.  1  Ired.  Eq.  128;  and  see  Palmer  v.  Stevens, 
100  Ma.ss.  46(5 ;  compare  Russell  v.  Clark,  7  Cranch,  98. 

17  Chapman  v.  Hamilton,  19  Ala.  124. 

iS  Vandine  r.  Eherman,  26  La.  An.  388 ;  generally  Milins  v.  Marsh, 
1  Disn.  512. 

19  Woodward  v.  Clark,  15  J^Dch.  110;  generally  Roddy  v.  Elam,  12 
Rich.  Eq.  ;^S  ;  Milins  ?".  Marsh,  1  Disn.  513 ;  Van  Epps  v.  Van  Deusen, 
4  Paige,  75  ;  Campbell  ;•.  Campbell,  8  X.  J.  Eq.  740  :  Rice  v.  Doniphan, 
4  3Ion.  B.  123 ;  Dougherty  v.  Morgan,  6  Mon.  152  ;  Potter  v.  Holden,  31 
Conn.  394  ;  Sears  v.  Hotchkiss,  25  Conn.  177 ;  Isler  t\  Koonce,  83  N.  C. 
56. 

20  Van  Epps  v.  Van  Deusen,  4  Paige,  75;  generally  Woodward  r. 
Clark,  15  Mich.  110;  Sherman  v.  Parish,  53  N.  Y.  488;  Kirkpatrick  v. 
Buford,  21  Ark.  269 ;  Vandine  v.  Eherman,  26  La.  An.  :»S. 

21  Schwoerer  v.  Boylston  M.  Assn.  99  Mass.  294  ;  Settembre  v.  Put- 
nam. :»  Cal.  497  ;  Grain  v.  Aldrich,  38  Cal.  522  ;  Shaver  i'.  Brainard,  29 
Barb.  26. 

22  Schwoeirer  v.  Boj-lston  M.  Assn.  99  Mass.  294  ;  and  see  Harris  v. 
Trustees,  110  Mass.  292. 

23  Craig  v.  McBride,  9  Mon.  B.  14  ;  generally  Harris  v.  Trustees,  110 
Mass.  2ir2;  Hopkins  v.  Roseclare  Lead  Co.  72  111.  .373;  Stimson  v. 
Thorne,  85  Gratt.  283 ;  Russel  v.  Clark,  7  Cranch,  SS. 

24  Reeder  ?•.  Maranda,  66  Ind.  487  ;  Cornwell  v.  Watkins,  71  111.  490 ; 
Ferguson  v.  Fisk,  2S  Conn.  511. 

25  Cornwell  r.  Watkins,  71  III.  490. 

26  Conlv  V.  Bovle,  6  Mon.  6.39;  generallv  Jackson  i\  Mnrrav,  5 
Mon.  ]89;'Muir  r.  Gibson,  8  Ind.  190;  Baker  v.  Backus,  32  Iil.'S6; 
Lynch  v.  Rotan,  .39  111.  20. 

§  104.  Generally,  of  new  parties.  —  On  filing  a  petition  by 
one  who  conceives  liimself  interested  in  the  event  of  a  chancery 
cause,  the  correct  practice  is  to  ask  orally  of  the  court  that  the 
matter  of  it  be  considered,  and  that  the  petitioner  be  made  a 
party  ;  otherwise  it  is  not  the  duty  of  the  court  to  take  up  the 
subject  of  the  petition  until  the  hearing  of  the  cause.^  The 
manner  of  making  new  parties  when  not  dh-ected  by  positive 
law  must  be  determined  by  the  practice  of  the  courts,  and  like 
other  matters  of  practice  is  subject  to  be  regulated  by  them.^ 
A  complainant  by  petition  united  in  a  creditor's  bill  which  had 
been  filed  against  defendants  before  it  was  at  issue,  subpoenas 
were  issued  and  served  on  him,  and  although  no  order  aj^peared 
to  have  been  made  permitting  the  joinder,  all  the  subsequent 


235  NEW  PARTIES.  §    104 

proceedings  were  carried  on  as  if  such  order  bad  been  entered ; 
the  court  and  all  parties  seem  to  have  acquiesced  in  the  joinder.'' 
When  a  new  party  is  sought  to  be  charged  by  the  original  bill, 
he  should  be  made  a  party  in  the  maoner  prescribed  by  the 
practice  of  the  court,  a  mere  service  of  process  upon  him  is  not 
sufificieut.*  When  a  complaint  which  states  no  cause  of  action 
or  ground  of  relief  against  a  particular  person  is  not  amended 
so  as  to  do  so,  an  order  making  such  person  a  party  defendant 
and  requiring  him  to  ajDpear  and  answer  such  complaint  is 
erroneous.^  In  certain  cases  where  on  payment  of  money  a 
right  of  subrogation  exists,  the  defendant  when  sued  for  the 
recovery  of  such  money  may  by  cross-petition  bring  in  as 
defendants  those  against  whom  a  cause  of  action  would  arise  in 
his  favor  to  enforce  a  repayment  of  such  debt ;  ^  but  in  a  strict 
legal  action  defendant  cannot  by  interposing  an  equitable  de- 
fensj  compel  plaintiif  to  amend  his  complaint  and  bring  in  new 
parties.'  When  the  answer  of  defendant  in  a  suit  in  chancery 
discloses  the  fact  that  there  are  other  parties  claiming  as  his 
assignees,  the  interest  sought  to  be  affected,  and  that  a  decree 
would  drive  such  third  persons  to  an  independent  suit  in  order 
to  assert  their  rights,  complainant  should  obtain  leave  to 
amend  his  bill  and  make  such  persons  parties  defendant ;  ^  if 
he  neglect  to  do  so  the  court  of  its  own  motion  should  order  it 
to  be  done  that  the  whole  controversy  may  be  settled  in  one 
action.^  A  person  who  has  no  interest  in  a  legal  sense  in  the 
subject-matter  of  a  suit  in  personam  cannot  compel  the  plaintiff 
to  make  him  a  party  either  plaintiff  i"  or  defendant.  ^^  The  gen- 
eral rule  under  the  Code  is  that  the  court  should  not  order  new 
parties  defendant  to  be  brought  in  against  the  will  of  the  plaintiff 
unless  the  presence  of  such  new  party  is  necessary  to  the  deter- 
mination of  the  action. 12  General  creditors  in  absence  of  any 
fraud  of  their  rights  by  complainants  will  not  be  allowed  on 
p3tition  to  be  made  parties  defendant  to  a  bill  to  enforce  a 
specific  lien  created  by  mortgage  prior  to  their  rights. ^^  When 
a  person  acquires  an  interest  in  mortgaged  premises  after  fore- 
closure proceedings  have  been  commenced,  it  is  not  error  to 
refuse  to  permit  him  to  be  made  a  party  defendant  upon  his 


g    104  >'E"^'   PAKTIES.  2CG 

own  aijplication  ;  ^^  but  a  fraudulc*it  vendee  j'^cndente  lite  may 
be  made  a  party  defendant  by  amendment. ^^  Xe^v-  parties  are 
usually  made  by  amendment  of  the  pleadings  before  decree, 
but  in  some  instances  where  their  interests  are  apparent  courts 
of  equity  will,  to  prevent  further  delay  and  as  a  matter  of 
indr.l;:;ence,  permit  them  to  bring  forward  their  claims  by  peti- 
tion in  order  that  their  rights  may  be  protected.^*"  When  a 
person  had  been  made  a  defendant  in  an  action  of  ejectment, 
but  before  service  of  process  or  appearance  the  action  was  dis- 
missed as  to  him,  and  judgment  taken  against  the  other 
defendant,  such  judgment  does  not  conclude  the  former  party, 
and  he  cannot  insist  on  being  made  a  party  to  the  action  after 
the  judgment  had  been  fully  executed.^'  When  a  cause  has 
been  heard  and  a  final  judgment  rendered,  it  is  too  late  for 
third  persons  to  come  in  and  ask  to  be  made  parties  that  they 
may  prosecute  an  appeal,  and  especially  so  where  they  show 
no  right  to  the  thing  in  action  or  to  its  immediate  use  or  con- 
trol.^** When  the  original  bill  does  not  state  a  cause  of  action 
against  defendants  who  have  been  made  parties  by  leave  of 
court  and  no  amended  bill  has  been  filed  as  to  them,  the  bill 
will  l>e  dismissed  as  to  them  even  though  they  have  answered 
the  original  bill,  there  being  nothing  for  them  to  answer,  relief 
could  not  be  granted  against  them.^'-'  Persons  improperly  made 
defendants  may  be  stricken  out  on  motion. -"^ 

1  Williams  i\  Hall,  7  Mon.  B.  295. 

2  Kegaiis  v.  Allcorn,  9  Tex.  34  ;  generallj-  Britain  v.  Cowen.  5 
Humph.  817. 

3  Myers  v.  Fenii,  5  Wall.  207  ;  generally  Cliamplin  v.  Champli.M,  4 
Edw.  C'h.  229. 

4  Odom  V.  Owen,  2  Jere  Baxt.  448  ;  Britain  v.  Cowen,  5  Humph. 
317  ;  Shields  r.  Barrow,  17  How.  145. 

5  Penfield  v.  AVheeler,  27  Minn.  358  ;  compare  McGregor  t.  Mc- 
Gregor, 21  Iowa,  454  ;  and  see  Shields  v.  Barrow,  17  How.  145 ;  Har- 
mison  f.  Loneberger,  11  W.  Va.  185;  Birmingham  v.  Griffin,  42  Tex. 

6  Besor  v.  McKenzie,  2  Disn.  211 ;  generally  Odam  v.  Owens,  2 
Jere  Baxt.  44.S  ;  but  see  Shields  v.  Barrow,  17  How.  145  ;  see  also 
McKisson  v.  Mendenhdll,  64  X.  C.  287  ;  Webster  v.  Bond,  9  Hun,  4.39. 

7  Webster  v.  Bond,  9  Hun,  438. 

8  Hopkins  v.  Boseclare  Lead  Co.  72  111.  377  ;  Robinson  v.  Gleason, 
53  Cal.  30. 


297  ^-EW  PAKTiES.  §  104 

9    Rohinson  v.  Gleason,  53  Cal.  :•!!) ;  generally  Vaiibuskirk  r.  Levy, 
'i  Met.  (Ky.j  liifi  ;  City  of  Louisville  ?'.  Henderson,  5  Bush,  olb. 

10  Drake  v.  Goodridge,  6  Blatchf.  151. 

11  Colman  v.  Martin,  fi  Blatchf.  120  ;  Drake  v.  Goodridge,  C>  Blatchf. 
120. 

12  Fagan  %'.  Barnes,  14  Fla.  5S  ;  Ex  parte  Proskauer,  59  Ala.  195  ; 
Hillier  r.  Stewart,  26  Ohio  St.  6.56  ;  Burke  v.  Wilkius,  49  Ga.  261. 

1.3    Foley  v.  Whitaker,  23  Ark,  98. 

14  Chickering  v.  Fullerton,  90  III.  .523  ;  generally  Lawrence  r.  Lane, 
9  111,  .^57  ;  Steele  r,  Taylor,  1  Minn.  2S5. 

15  Coates  V.  Elliott,  23  Tex.  610. 

16  Birdsong  v.  Birdsong,  2  Head,  .302  ;  Saj-Iors  v.  Saviors.  ■]  Helsk. 
533  ;  generally  Burke  v.  Wilkins,  49  Ga,  261. 

17  Hathaway  v.  Fullerton,  11  Wis.  288  ;  and  .see  Ex  parte  Brown, 
58  Ala.  .>13. 

IS    Johnson  v.  Williams,  28  Ark.  479  ;  Foley  v.  Whittaker,  26  Ark. 
99  ;  see  Ex  parte  Brown,  58  AJa.  543  ;  Files  v.  Watt.  25  Ark,  15L. 

19  Andrew  v.  Solomon,  1  Peters  C.  C.  362. 

20  Steele  v.  Taylor,  1  Minn.  26b. 


$  105  ABATEMENT.  298 

CHAPTER  XYI. 

ABATEMENT,    KEVIVOE,    ETC. 

2  105.  Generally  of  abatement. 

§  10(3.  Of  the  substitution  of  parties. 

§  107.  Change  of  interest  after  suit  commenced  and  before  judgment. 

J  108.  Change  of  interest  after  judgment  and  pending  appeal. 

§  105.  Generally  of  abatement.  —  At  common  law  an  action 
when  abated  is  absoluteh^  dead  —  it  is  out  of  court  for  all  pur- 
poses.i  By  statute  the  death  or  other  disability  must  be  sug- 
gested of  record,  and  until  ifc  is,  neither  party  can  be  com- 
pelled to  advance ;  after  it  is  suggested,  the  other  party  is 
entitled  to  notice  of  the  fact,  and  to  the  direction  of  the  court 
that  he  proceed,  without  this  he  is  not  in  default."'^  In  equity  a 
suit  when  abated  is  merely  in  a  state  of  suspended  animation 
and  may  be  revived.^  The  death  of  a  defendant  in  a  real 
action  causes  an  abatement,  the  theory  being  that  the  rights 
descend  to  the  heir,  a  new  cause  of  action  springs  up,  thereby 
changing  the  condition  of  the  cause  ;■*  but  actions  in  tha  nature 
of  trespass  quaj^e  clausuin  fregit  did  not  at  common  law  abate 
because  of  the  death  of  one  of  several  defendants,  they  were 
declared  against  jointly  and  severally,  might  plead  severally, 
have  separate  trials,  and  diverse  judgments ;  and  even  upon  a 
common  verdict  against  all,  after  joint  declaration,  plea,  and 
trial,  the  plaintiff  might  enter  a  nolle  prosequi  as  to  some  and 
take  judgment  against  the  rest.^  In  an  equitable  action  against 
several  defendants  for  an  accounting,  on  the  death  of  one  the 
action  survives,  and  his  representatives  should  be  made  par- 
ties."^ Where  there  are  two  or  more  plaintiffs  or  defendants  in 
a  personal  action,  and  one  or  more  of  them  die  within  a  year 
after  judgment,  execution  may  be  had  for  or  against  the  sur- 
vivors without  scire  facias ;  but  the  execution  in  such  cases 
should  be  taken  out  in  the  joint  names  of  all  the  plaintiffs  or 
defendants. 7  The  words  "  after  issue  joined"  in  the  statute  of 
New  Jersey,  to  prevent  the  abatement  of  actions,  means  after 


299  ABATE3IEN-T.  ^105 

the  end  of  the  pleadings  in  the  case ;  after  the  death  of  a  party 
the  pleadings  cannot  be  amended  to  meet  the  exigencies  of  the 
case  and  bring  it  within  the  statute.**  The  abatement  of  a  suit 
in  equity  by  the  death  of  a  party,  and  its  revival  against  his 
personal  representatives  by  a  bill  of  revivor,  or  by  proceedings 
under  the  fifth  section  of  the  act  relating  to  the  abatement  of 
suits,  does  not  make  it  a  new  suit,  it  is  the  same  suit,  i;i  which 
both  parties  are  entitled  to  the  benefit  of  all  former  proceed- 
ings ;^  and  so,  although  scire  facias  to  revive  a  judgment  is  to 
some  purposes  a  new  action,  yet  in  the  main  it  is  to  be  regarded 
as  a  continuation  of  the  former  action  —  it  creates  nothing  new, 
it  only  reanimates  that  which  had  before  existed  but  whose 
vital  faculties  are  suspended. ^"  If  a  judgment  thereon  be 
entered  for  the  plaintiff,  it  is  not  that  he  recover  anything 
(except  his  costs  on  the  sci7'e  facias),  but  that  he  have  his  exe- 
cution for  the  debt,  damages,  and  costs  according  to  the  force, 
form,  and  efi'ect  of  the  recovery  set  forth  in  the  scire  facias. 
If  the  recovery  had  been  against  more  than  one  person,  the 
proceeding  to  enforce  it  must  be  against  all,  unless  there  be 
some  fact  of  record  which  shows  that  the  whole  judgment  has 
survived,  or  which  in  law  warrants  the  collection  of  the  whole 
judgment  from  some  of  them  only.i^  T\lien  a  dormant  judg- 
ment is  revived,  its  lien  against  real  estate  is  not  so  revived 
as  to  prejudice  the  rights  of  a  piarchaser  of  lands  from  the 
judgment  debtor  while  the  judgment  was  dormant.'-  "When  a 
plaintiff  dies  a  bill  of  revivor  is  not  preferable  to  a  scire 
facias,  for  whether  the  one  mode  or  the  other  is  resorted  to 
the  executor  is  simply  to  stand  in  the  place  of  the  testator; 
but  when  a  defendant  dies  a  bill  is  preferable  to  a  sci7'e  facias, 
for  a  new  fact  is  then  to  be  stated,  i.  c.,  assets  in  the  hands  of 
the  executor. ^^  Upon  the  death  of  a  sole  defendant  an  appli- 
cation to  revive  the  suit  will  not  be  granted  when  the  defend- 
ant had  not  acquired  rights  or  benefits  in  the  litigation  prior  to 
his  death,  or  it  is  not  shown  that  prejudice  would  result  to  the 
estate  by  not  continuing  the  action. i'  When  defendant  in  an 
action  to  condemn  lands  dies  during  the  pendency  of  tiie  pro- 
ceedings, the  revivor  (Code)  should  be  in  the  name  of  the  heir 


2    105  ABATEMENT.  300 

or  devisee  and  not  in  that  of  the  administrator. ^^  The  county 
court  has  no  power  to  appoint  a  special  administrator  for  tlio 
purpose  of  defending  a  particular  suit,  in  which  the  part}-  dies 
jyendente  lite;  if  the  person  die  intestate,  and  no  one  will 
administer  upon  his  estate,  the  plaintiff  (Code)  may  by  scire 
facias  revive  against  his  heirs. i*^  An  action  cannot  be  revived 
against  a  foreign  administrator  who  has  not  brought  assets 
within  the  jurisdicticn.^^  The  statute  in  relation  to  the  abate- 
ment of  actions  and  their  revival  is  in  the  nature  of  a  special 
Statute  of  Limitations,  after  the  expiration  of  the  time  therein 
limited,  no  wi-it  of  scire  facias  can  issue ;  ^^  so  where  the  stat- 
ute prescribed  that  the  action  may  be  revived  "by  service  upon 
the  heir,  icitldn  two  terms  after  the  decease  of  defendant,  a 
copy  of  the  declaration,  etc.,"  a  service  after  that  time  is  too 
late;  nor  is  it  sitfficient  to  apply  for  process  within  the  time.'*' 
Wliea  a  plaintiff  is  under  a  stay  of  proceedings  at  the  time  of 
liis  death,  it  does  not  prevent  a  motion  to  revive  and  continue 
the  action,  and  unless  the  motion  is  made  within  the  year  re- 
quired by  the  Code,  the  action  is  barred.-*^  A  defendant  having 
a  beneficial  interest  may  exhibit  a  bill  of  revivor  for  the  pur- 
pose of  appealing  from  the  decree  rendered  in  the  action. ^^ 
When  a  sole  plaintiff  dies  his  lawful  representative,  or  any 
person  interested  by  the  death  of  such  plaintiff,  may  cause 
himself  to  be  made  complainant  to  the  suit ;  when  a  sole  de- 
fendant dies,  the  plaintiff  may  cattse  the  legal  representative  of 
such  defendant  or  any  person  who  has  become  interested  by  his 
death,  to  be  substituted  as  defendant,  unless  he  signify  his  dis- 
claimer in  the  matter  in  controversy. ''^-  Before  decree  a  suit 
cannot  be  revived  at  the  instance  of  the  defendant ;  but  after 
the  decree  either  party  may  revive  it.=^=^  When  plaintiff  or 
defendant  dies  after  final  argument,  but  prior  to  the  decree, 
the  court  may  order  the  decree  to  be  signed  as  of  a  date  prior 
to  the  death  of  the  party. 2^ 

1  Pringle  v.  Sizer,  2  S.  C.  63. 

2  Hendrickson  v.  Herbert,  38  IST.  J.  L,  297 ;  generallv  Crane  v. 
French.  3S  Miss.  529  ;  Witt  v.  Ellis,  2  Cold.  41  ;  Carlill  v.  Holdship,  13 
La,  377  ;  Appold  v.  Prospect  Build.  Assoc.  37  ild.  460  ;  Holthaus  v. 
^lcholaS;  41  Md.  264  ;  see  Hiriat  v.  Hildreth,  8  La.  Au.  fA. 


I 


3C1  SrBSTITfTION-.  \   106 

^^  Witt  V.  Eilis,  2  Cold.  41  ;  Brewer  r.  Dodge,  28  Mich.  3fiO  ;  Pr:::gle 
v.  Sizjr,  •_'  8.  C  6s  ;  Morrison  v.  Deadrick,  10  Hump.  a4.:>. 

4  People  ex  rel.  ?'.  Judge.  40  Mich.  351  ;  Walker  v.  Thomas,  T 
Wheat.  O.J0  ;  Alley  ?;.  Hubbard,  VJ  Pick.  24a 

0  Hendrickson  r.  Herbert,  33  X.  J.  L,  208  ;  Sumuer  v.  Tileston,  4 
Pick.  :300, 

G    Halstead  v.  Cockcrof t,  S  Jones  &  .S.  520. 

7  Bowen  r.  Bonner..  45  Miss.  27. 

8  Dickerson  ?■.  Htoll,  24  X.  J.  L.  551 ;  generallj-  Crane  v.  Ailing,  14 
N.  J.  L.  5J  J ;  Carlile  r.  Holdship,  15  La.  377  ;  Berrigan  v.  Flemi:;g,  2 
Lea,  273. 

9  Marlatt  r.  War%Yick,  19  N.  J.  Eq.  445  ;  generallv  Lewis  v.  Out- 
law, 1  Over.  140  ;  Rucker  v.  Lewis,  1  Heisk.  729  ;  Carlile  v.  Holdship. 
15  La.  377  ;  Berrigan  r.  Fleming,  2  Lea,  273  ;  Cregin  v.  Brooklvn  C. 
Rv.  Co.  S3  2^.  Y.  596  ;  Gillette  v.  Morrison,  7  Xeb.  '2M  ;  but  see  Rhodes 
r.  Scholfield,  GLa.  An.  2.52. 

10  Binford  v.  Alston,  4  Dev.  35.> ;  and  see  Ellis  v.  Jones,  51  Mo.  ISJ. 

11  Binford  v.  Alston,  4  Dev.  3-53;  generally  Xortoa  v.  Beaver,  5 
Ohio,  ISI ;  Bowen  v.  Bonner,  45  Miss.  2/. 

12  Hutchinson  v.  Hutchinson,  15  Ohio,  312  ;  Xorton  v.  Beaver,  6 
Ohio,  17J. 

13  Carson  v.  Richard.son,  3  HaA-w.  2:« ;  generallv  Brandon  v. 
Mason,  1  Lea,  624  ;  MUes  r.  Miles,  32  X'.  H.  166  ;  Ruc'.fer  r.  2Ioor.s  I 
H2isk.  72.S  ;  Bowen  r.  Bonner,  45  Miss.  28. 

14  Republic  of  Peru  v.  Reeves,  8  Jones  &  S.  320. 

15  Valley  Ry.  Co.  v.  Bohm.  2j  Ohio  St.  6:^4  ;  generally  Edgington  v. 
Jamison.  2  Lea,  -570  ;  Brown  v.  Rocco,  9  Heisk.  187. 

16  Bandy  v.  ^Valker,  3  Head,  539  ;  generally  Edgington  r.  Jamison, 
2  Lea,  .570  ;  Brown  v.  Rocco,  9  Heisk.  187. 

17  In  re  Webb,  14  Hun,12o. 

18  Rutherford  v.  "Wliliams,  62  Mo.  254  ;  generally  Peer  v.  Cookerow, 
13  X.  J.  Eq.  137  :  Wentwortn  v.  Wenlworth,  12  Vt.  245  ;  see  Trea.s.  cf 
Vt.  i\  Raymond,  16  Vt.  368. 

19  Love  V.  Scott,  4  Ired.  80  ;  generally  Rutherford  r.  Williams,  62 
Mo.  2.53  ;  Gallagher  v.  Delargy,  57  Mo.  ;i5  ;  s^e  Cobb  v.  Conway,  1  Over. 
2J5  ;  Huffman's  Heirs  v.  Stiger,  1  i-iiis.  (Pa.  i  ISG. 

20  In  re  Bainbridge,  67  Barb.  233  :  but  see  Pavey  x.  Pavev,  30  Ohio 
St.  603. 

21  Peer  v.  Cookerow,  13  X.  J.  Eq.  137. 

22  Benson  v.  ^Volverton,  17  X.  J.  Eq.  Ill  ;  generally  Vaii  .\llen  r. 
Hewius,  5  Hun,  45  ;  Cobb  v.  Lanier.  4  Havw.  297  ;  Whe.'ler  c.  Wheeler, 
7  Mass.  16.1 ;  Roe  v.  Doe,  .30  Ga.  776;  Mavfield  v.  Stephenson,  6  Ba.Kt. 
(Tenn.)  399  ;  Gibbs  v.  Cahoon,  3  Dev.  81  ;  Scholev  t-.  Halsev,  72  X.  V. 
532. 

23  Benson  v.  Wolverton,  IG  X.  J.  Eq.  112  ;  generallv  Peer  r.  Coo!:- 
erow,  13  X.  J.  Eq.  137  ;  HoUiuiUo  v.  Xicholas,41  Md.2&4. 

24  Vroom  ?•.  Ditmas,  5  Paige,  529  ;  Campbell  v.  Mesier,  4  Joh::s.  C\\. 
342  ;  Benson  r.  Wolverton,  1(>  X.  J.  Eq.  111. 

\  106.  Cf  the  substitution  cf  parties.  — It  is  regular  anJ 
proper  to  suggest  the  death  of  a  party  in  am*  court,  and  at  any 

P.A.RTIKS-  23 


g   106  SUBSTITUTIOX.  302 

stage  of  the  proceeding.^  Upon  the  death  of  plaintiff  his  admin- 
istrator may  be  substituted  as  partj'  to  the  proceedings  by  ex 
parte  motion,  satisfactory  proof  of  his  appointment  and  qiialifi- 
cation  being  made.^  An  alleged  assignee  cannot  be  substituted 
as  party  until  the  legal  representatives  or  heirs  have  had  an 
opportunity  to  appear  and  contest  the  right,  particularly  if  the 
defendants  object  to  such  substitution.^  A  court  of  equity  must 
have  the  real  parties  in  interest  before  it,  and  will  not  permit  a 
party  who  has  voluntarily  divested  himself  of  any  claim  on  his 
own  behalf  to  continue  litigating;  as  soon  as  complainant 
assigns  his  rights  the  suit  as  to  him  ceases,  and  becomes  as 
defective  for  want  of  a  complainant  as  if  it  had  abated  by  his 
death,  and  can  only  be  restored  to  activity  by  bringing  the 
rights  of  the  assignee  before  the  court.^  The  Code  j^rovides,  ■ 
however,  that  an  action  shall  not  abate  by  the  death  or  other 
disability  of  a  party,  or  by  the  transfer  of  any  interest  therein, 
if  the  cause  of  action  survive  or  continue.^  In  case  of  death 
or  other  disability  of  a  party,  the  court  on  motion  may  allow 
the  action  to  be  continued  by  or  against  his  representative,  or 
successor  in  interest ;  in  case  of  any  other  transfer  of  interest 
the  action  may  bo  continued  in  the  name  of  the  original  party, 
or  the  court  may  allow  the  person  to  whom  the  transfer  is  made 
to  be  substituted  in  the  action.''  Under  the  provisions  of  the 
Arkansas  statute  (sec.  7,  Gantt's  Digest),  if  a  woman  dies  leav- 
ing a  minor  child,  and  an  estate  of  less  than  three  hundred  dol- 
lars, the  estate  will  vest  in  the  child  who  may  be  substituted  as 
plaintiff  in  a  suit  instituted  by  the  eleceased  parent.'  If  the  mo- 
tion to  substitute  is  made  within  a  year  after  the  death,  the  oppo- 
site party  is  not  entitled  as  of  right  to  notice  of  the  motion  for 
substitution  ;  ^  after  the  lapse  of  the  year,  a  more  formal  motion 
is  required.''  When  a  party  of  record  dies  x:)ending  the  action,  his 
representative  is  not  thereby  made  a  partv,  nor  does  he  become 
affected  by  any  proceedings  in  the  suit,  until  he  is  brought  into 
court  and  made  a  party  in  due  forni.^"  A  court  may  permit 
amendments  to  be  made  to  the  extent  of  discontinuing  the 
action  as  to  any  joint  plaintiff  or  joint  defendant,  and  changing 
the  form  of  the  action,  so  long  as  any  one  or  more  of  the  orig- 


303  SUBSTTTUTIOX.  I    lOQ 

inal  plaintiff  and  defendants  remain  parties  to  tlie  action ;  but 
no  amendment  can  bo  permitted  which  will  make  an  entirely 
now  case  against  entirely  new  parties  to  the  record  ;  ^^  and  so  it 
is  not  permissible  to  strike  ont  the  name  of  a  sole  i^arty,  either 
plaintiff  or  defendant,  and  substitute  the  name  of  another  per- 
son ;  1^  but  where  a  suit  was  brought  by  A.  for  the  benefit  of  B., 
held  not  to  be  error  to  amend  by  striking  out  the  name  of  the 
nominal  party, ^^  and  allowing  the  action  to  proceed  iu  the 
name  of  the  real  plaintiff ;  anel  so  when  an  action  was  com- 
meuccel  by  an  agent,  it  was  held  not  to  be  error  to  substitute 
the  principal  as  plaintiff.^*  When  a  suit  in  ee[uity  was  brought 
in  the  name  of  a  corporation,  and  the  proof  failed  to  estabUsh 
its  corporate  existence,  the  stock  being  owned  by  three  persons, 
an  amendment  was  made  allowing  such  stockholders  to  be  made 
l^arties  plaintiff",  and  to  iDrosecute  tLesuit  in  their  names  ;  '^  but 
when  suit  was  commenced  by  plaintiff  as  a  voluntary  associa- 
tion, the  subsequent  incoi-poration  was  held  to  be  a  new  party, 
and  that  an  amendment  substituting  the  name  of  the  incoi-po- 
ration  as  party  plaintiff  would  not  be  allowed.^*"  A  purchaser  at 
sheriff' 's  sale  under  a  mistake  of  fact  may  in  certain  cases  have 
the  sale  set  aside  and  be  released  from  the  purchase ;  but  the 
assignee  of  the  sheriff's  certificate  is  not  entitled  to  have  the 
judgment  set  aside  and  himself  substituted  as  party  plaintiff' in 
the  place  anel  stead  of  the  original  plaintiff.^^  After  an  admin- 
istrator has  been  substituted  as  plaintiff,  and  answer  filed,  it  is 
too  late  for  elefendant  to  object  that  the  averments  of  the  x>eti- 
tijn  do  not  correspond  with  the  change  of  parties. ^^  When  an 
action  is  brought  against  a  baUee,  he  may  protect  the  inter- 
ests of  the  real  principal  by  bill  of  interpleader,  but  the 
Code  provides  a  simpler  remedy ;  after  action  commenced, 
and  before  answer,  he  may  deposit  the  pi'operty  in  court, 
and  apply  to  have  the  principal  substitutcel  as  defendant. ^5* 
The  Code  of  Civil  Procedure  of  Nebraska  (sec;  ion  50),  pro- 
vides that  "in  an  action  against  an  6fficer,  for  the  recovery  of 
property  taken  under  an  execution,  and  replevied  by  the  plaintiff 
in  sucli  action,  the  court  may,  upon  the  application  of  the 
defendant,  and  of  the  party  in  whose  favor  execution  issued. 


g  106  srBSTiTrTioN.  ZOi 

IDormit  the  latter  to  be  substituted  a^  defendant,  sccurit}^  for 
costs  being  given ;  held,  the  order  of  substitution  must  be  made 
before  final  judgment.*-^"  The  administrator  of  defendant  can- 
not, without  the  consent  of  plaintiflf,  procure  himself  to  bo 
siibstituted  as  defendant ;  his  remedy  is  by  motion  to  compc  1 
plaintiff  to  make  the  substitution,  or  dismiss  the  action. -^  The 
owner  of  a  note  assigned  the  same  to  a  fictitious  person,  and 
sued  and  recovered  judgment  in  his  name;  upon  bill  filed  by 
the  defendant  to  restrain  the  collection  of  the  judgment,  it  was 
held  that  although  the  original  proceedings  were  an  abuse  of 
the  process  of  the  court,  yet  in  absence  of  fraud  the  real  party 
in  interest  should  be  made  a  party  and  jjermitted  to  defeud,^- 
"Where  one  of  two  joint  debtors  in  an  action  upon  contract  dies 
X>endente  lite,  his  executors  cannot  be  substituted  as  parties 
defendant  unless  they  could  have  been  originally  joined  had 
the  suit  been  commenced  after  the  death  of  the  testator.^^  An 
amendment  cannot  be  permitted  on  appeal,  which  will  make  an 
entire  1/ new  case  against  entirely  new  parties  to  the  record.^* 
When  the  representative  of  one  of  several  elefendants  in  an 
action  of  tort  has  procured  himself  to  be  substituted  as  a  party, 
he  cannot  after  appeal  anel  new  trial  granted,  reobtain  an  order 
vacating  the  order  of  substitution.^^  Where  the  record  shows 
who  are  the  members  of  a  partnership,  in  the  name  of  which 
an  appeal  has  been  taken,  an  amendment  may  be  made  under 
section  1005,  Revised  Statutes  of  the  United  States,  substituting 
their  names. 2"  When  a  party  dies  pending  suit,  and  one  not  his 
representative  is  made  a  party  in  his  stead  by  consent,  and  upon 
the  express  condition  that  the  opponent  shall  lose  no  right 
thereby,  the  same  evidence  is  admissible,  as  if  the  legal  repre- 
sentative had  been  made  a  party. ^^ 

1    Judson  r.  Love,  25  Cal.  -^69, 

'2  Taylor  r.  W.  P.  Ry.  Co.  45  Cal.  3.58 ;  compare  Howard  v.  Ulc- 
Kenr.io,  54  Tex.  18;J ;  and  see  Htocking  v.  Hanson,  22  Minn.  545. 

3  Howard  v.  3IcKenzie,'&l  Tex.  18.3  ;  generally  Moore  v.  Rice,  51 
Tex,  290. 

4  Bre-wer  r.  Dodge,  23  Mich.  360  ;  and  see  Ross  v.  Crockett,  14  La. 
An.  812;  Garr  v.  Gomez,  i)  Wend.  65;^;  Mason  v.  Y.  &  C.  Ry.  Co.  52 
Me.  107  ;  Wright  v.  Meek,  3  G.  Greene,  472  ;  compare  Scott  r.  ililliken, 
60  111.  lot). 


305  REVivoK.  ^107 

5  French  v.  Edwards,  4  Sawy.  128;  Elliott  v.  Teal,  S  Sa\v\-.  190; 
iloss  1-.  Shear,  30  Cal.  475  ;  Camarillo  v.  Feulou,  49  Cal.  200, 

G  Moss  V.  Shear,  30  Cal.  47G  ;  generally  Canaarillo  v.  Fenlon,  49 
Cal.  203  ;  Elliott  v.  Teal,  5  Sawy.  190  ;  Chickasaw  Co.  v.  Pitcher,  Sfi 
Iowa,  oDG ;  Firman  v.  Bateman,  2  Utah,  272;  soc  Walker  v.  Felt, '>4 
Cal.  :«e ;  see  also  Scott  v.  Milliken,  GO  lil.  109  ;  Cox  v.  N.  Y.  C.  &  H.  R. 
Ry.  Co.  G3  In  .  Y.  415  ;  French  v.  Edwards,  4  Sawy.  128. 

7  Smith  V.  Allen,  SI  Ark.  2ro  ;  Hampton  v.  Physick,  24  Ark.  cG2. 

8  Stocking  r.  Hanson,  22  Minn.  545  ;  generally  Smith  v.  Alle::,  "1 
Ark.  26)  ;  Matter  of  Bainbridge,  fi2  Barb.  234  ;  Firman  ?•,  Bateman,  2 
Utah,  273  ;  Hestres  v.  Brenneu,  87  Cal.  ;58S  ;  see  Jeifries  r.  Flint,  45 
Mo.  81. 

9  Stocking  x\  Hanson,  22  Minn.  545;  see  generally  Johnson  v. 
E;woo:l,  15  Hun,  15. 

10  Ex  parte  Tinkum,  hi  Cal.  203  ;  Judson  v.  Love,  35  C.d.  4G9  ;  and 
see  Lynch  v.  Jackson,  31  C4a.  G70 ;  Virgin  v.  Brubaker,  4  Nev.  :?4. 

11  Douglas  V.  Xewman,  5  Bradw.  520. 

12  Davis  Park  Ry.  Co.  v.  Mallon,  57  Ala.  16S;  Dubbers  v.  Goux.  51 
Cal.  154;  genercdlv  Davis  v.  Mavor  of  X.  Y.  14  X.  Y.  52G ;  Price  v. 
Wiley.  13  Tex.  142  ;  Winkelmaier  v.  Weaver,  ii  Mo.  ;«8  ;  Sliealy  v. 
Toole,  f4  Ga.  523  ;  compare  3Iining  <fc  Q.  Co.  v.  Windham  Co.  Bank,  44 
Vt.  497  ;  Marsh  River  Lodge  v  Inhts.  of  Brooks,  01  Mo,  536. 

13  Martel  v.  Somers,  26  Tex.  558 ;  and  see  Price  v.  AViloy,  19  Tex. 
142  ;  Griffin  v.  Sheley,  55  Iowa,  515 ;  ^'lark  v.  Hopkins,  "A  Tox.  149. 

14  Price  V.  Wiley,  IJ  Tex.  142  ;  and  see  Winkelmaier  v.  Weaver,  23 
Mo,  353  ;  Shealy  v.  Toole,  G4  Ga,  bid. 

15  Mining  &  Q,  Co.  v.  \v  indham  Co.  Bank,  44  Vt.  4:7 ;  ge:.err.lly 
Moore  v.  Simonds,  100  U,  S,  145. 

Ifi    Marsh  River  Lodge  v.  Inhts.  of  Brooks,  Gl  :.Ie.  533. 

17  Abadie  v  Lobero,  33  Cal.  333. 

18  Ream  t'.  Jack,  44  Iowa,  325, 

13  McKay  v.  Draper,  27  N.  Y.  263  ;  see  Churchill  v.  Welsh,  47  Wis. 
53  ;  Plowe  Machine  Co,  i'.  Gi^rord,  OG  Barb.  5.^7. 

20  Hickiin  v.  Xeb.  City  X^'atl.  Bank,  S  Xeb.  4f 3  ;  generally  Wil- 
liams c'.  Brown,  23  Iowa,  248. 

21  Johnson  v.  Elwood,  15  Hun,  IG  ;  generallv  Judson  v.  Love,  33 
Cal.  4!) ). 

22  Triplett  v.  Vandergrift,  8  Mon.  B.  421. 

23  Hanck  v.  Craighead,  (37  X.  V.  43G  ;  generally  Angell  v.  Lawton, 
14  Hun,  71. 

24  Douglas  v.  Xewman ,  5  Bradw,  520  ;  Davis  Ave,  Ry,  Co.  v.  Malley, 
57  Ala.  133 ;  genei-ally  Moore  v.  Symonds,  103  U.  S.  Ho;  Booae  v.  Mc- 
Clano,  2  Oreg.  3:31, 

23    Arthur  ?-,  Griswold,  IG  Abb.  Pr.  X".  S.  2:18. 
28    Moore  v.  Simonds,  1C3  U.  .'•;.  14.1, 
27    Power  v.  Savannah  Ry,  53  Ga.  473, 

^  107,  Giange  cf  interest  aftar  suit  comnencsd,  azd 
before  judjnent.  —  Txie  tleath  of  the  plain tili'  in  an  action, 
before  suit  commenced,  may  be  pleaded  in  abatement,  or  in  bar 


g  107  REVIVOR.  306 

to  the  action  ;  ^  under '  the  provision;;  of  statute,  the  death  of 
tlie  nominal  plaintiff,  before  tlie  institution  of  the  suit  is 
immaterial,  an  amendment  by  inserting  the  name  of  his 
administrator  is  formal  only.=^  and  so  the  death  of  the  nominal 
plaintiff  p2ndiug  suit  will  not  cause  abatement;  the  same  rule 
applies  whether  the  nominal  plaintiif  is  a  natural  ^  or  an  artificial 
person.-*  The  right  of  action  for  the  breach  of  a  parol  contract 
for  the  sale  of  land  passes  to  the  executor  of  the  vendee,  and 
not  to  the  devisee.^  Upon  the  death  of  one  of  two  joint  plain- 
tififi  the  fact  should  be  suggested  on  the  record,  and  the  cause 
continued  in  the  name  of  the  survivor  as  such ;  '^  so  in  case  of 
sale  of  the  interest  of  one  co-plaintiff  in  the  subject-matter  of 
litigation  to  the  others,  the  Latter  should  continue  to  prosecute 
in  their  own  namesJ  Upon  the  death  of  cue  co-partner  after 
suit  brought  there  need  be  no  revivor,  but  upon  suggestion 
of  the  fact  the  cause  may  proceed  against  the  other  defendant 
as  surviving  partner;'*'  so  as  to  executors. ^"^  Actions  on  con- 
tract against  several  defendants  jointly  liable  do  not  abate  by 
the  death  of  one  or  more  defendants,  but  the  death  being  sug- 
gested, the  action  should  j^roceed  against  the  survivors  ;''^  the 
personal  representative  cannot  be  joined. ^^  It  seems  the  exe- 
cutors can  be  reached  only  by  new  suit  founded  upon  the 
insolvency  of  the  survivors ;  '*  upon  the  death  of  the  survivor 
the  action  should  be  revived  against  the  executor  of  the  sur- 
vivor of  the  original  defendants.'*  The  section  of  the  Code 
(758,  Code  Civ.  Proc.  N.  Y.),  jDroviding  that  the  estate  of  one 
jointly  liable  with  others  shall  not  be  discharged  by  his  death, 
does  not  affect  contracts  entered  into  before  its  passage ;  so 
where  in  an  action  against  sureties  upon  an  undertaking  given 
before  the  passage  of  the  section  referred  to,  upon  the  death  of 
one  defendant  it  was  held  the  action  could  not  be  revived 
against  his  executor,  and  he  be  substituted  as  a  defendant.'^ 
In  equity  an  action  does  not  abate  by  the  death  of  one  co-plaint- 
iff or  co-defendant ;  if  one  plaintiff  and  one  defendant  survive, 
the  suit  is  open  for  amendment ;  ^^  but  if  a  sole  plaintiff  assign 
his  interest,  the  suit  as  to  him  ceases,  and  becomes  as  defective 
for  want  of  parties  as  if  it  had  abated  by  his  death.'-     A  pro- 


307  KEvivoE.  ?  107 

ceeding  to  foreclose  a  meclianic's  litn  (under  Laws  of  1833, 
cliapter  530,  N.  Y.)  is  not  an  action  within  the  meaning  of  the 
Code ;  it  abat-d  by  the  death  of  defendant,  and  could  not  be 
rovivcd.'^  "With  respect  to  choses  in  action  that  vested  in  the 
wife  before  marriago,  the  husband  must  sue  jointly  with  her 
to  recover  them  ;  those  accruing  subsequent  to  marriage  might 
bo  sued  for  cither  by  the  husband  alone,  or  jointly  with  his 
wife  ;  if  he  join  her,  and  recover  judgment,  and  die,  the  judg- 
ment will  curvivo  to  her.'^  Yv'hen  the  husband  and  Avdfe  join  in 
an  action  en  the  case,  for  obstructing  c  right  of  way,  appurtc- 
nrint  to  the  inheritance  of  the  wife,  and  the  wife  dies  pending 
tl:e  action,  it  does  not  abate,  but  the  husband  may  proceed  and 
recover  judgment. ^^  At  common  l.iw  the  action  of  trover 
abated  by  the  death  of  the  defendant."^  An  action  for  personal 
injury  resulting  from  negligence  does  not  survive. --  Where  a 
statute  provides  that  a  railroad  company,  by  whose  negligence 
the  life  of  a  person  i.i  lost,  forfeit.i  a  certain  sum  to  be  i-ecovercd 
by  indictment  to  the  use  of  the  heirs  of  the  deceased,  to  bring 
a  case  within  this  statute  the  hilling  must  be  instantaneous. '-^'^ 
Actions  for  malfeasance  or  misfeasance  of  the  defendant  abate 
by  his  death,  and  cannot  bo  re\uved  against  his  executor ;  ^* 
and  as  a  rule  all  personal  actions  die  with  the  person. '-^-^  In 
replevin  upon  the  death  of  the  pbiutiif  his  executor  would  be 
admitted  to  prosecute  the  suit;-''^  not  so,  however,  upon  the 
death  of  the  defendant  'the  action  abated. ^"^  An  action  for 
breach  of  promise  of  marriage,  no  special  damage  being 
alleged,  did  not  survive  against  the  executor  of  the  defendant ;  '^^ 
so  an  action  for  deceit  in  falsely  pretending  that  defendant  was 
divorced,  whereby  i)laintiff  was  induced  to  marry  him,  did  not 
survive  against  his  executor  ;  '^  and  so  an  action  for  diverting  a 
water  course  dies  with  the  plainti^'.^*^  The  xVcts  of  1785,  chap- 
ter 80,  and  1738,  chapter  101,  sub-chapter  1484  (IVId.)  were  not 
intended  to  prevent  the  abatement  of  action  that  died  with  the 
person,  but  to  prevent  the  abatement  of  those  actions  which 
did  not  die  with  the  person,  and  to  enable  the  representatives 
of  the  deceased  party  to  prosecute  them.^^  By  Revised  Stat- 
utes of  3Iaine  (chapcer  87,  g  8),  it  is  provided  --all  actions  for 


g  107  EE^TS-OE.  COS 

trespass,  and  trespass  on  tlic  case,  shall  survive,"  to  this 
there  is  no  qualification, ^'•^  and  an  action  of  trespass  for  doiible 
damages  (under  chapter  30,  g  1),  for  injury  done  ly  a  dog, 
survives  plaintiff's  death  during  its  pendency.^^  On  the  death 
of  plaintiff  in  an  action  for  the  recovery  of  damages  for 
bodily  injury  occasioned  by  the  act  or  default  of  defendant, 
the  action  survives  under  the  general  statutes  of  Vermont, 
and  may  be  prosecuted  to  final  judgment  by  the  executor  of 
plaintiff.^*  By  the  common  law  the  death  of  a  sole  party 
plaintiff  or  defendant  abated  the  suit :  but  by  our  statute  (Md.) 
the  return  of  the  sheriff  that  the  defendant  is  dead  does  not 
necessarily  abate  the  suit,  the  executor  may  become  a  party 
by  his  voluntary  appearance,  and  the  action  regularly  proceed 
against  him.^^  ^Yhen  an  action  is  prosecuted  by  a  public  officer 
in  his  official  capacity,  the  action  does  not  abate  by  his  death, 
or  the  expiration  of  his  term  of  office ;  the  action  may  be 
continued  by  his  successor.^''  An  action  on  the  Eevised  Stat- 
utes of  Massachusetts,  commenced  by  one  vrho  has  only  a 
life  estate  in  the  land  sought  to  be  recovered,  is  abated  1  y  his 
death.^'  The  provisions  of  the  statute  allovring  actions  for 
torts  to  survive  have  been  strictly  construed,  so  as  not  to  ex- 
tend the  exceptions  beyond  the  clear  intent  of  the  legislature.^" 
In  an  action  by  A.  against  X.  for  partition  of  lands  A.  died 
pending  the  action,  leaving  a  widow  and  heirs ;  by  the  provis- 
ions of  the  Code  (Ya.)  the  action  may  be  revived  in  their 
names  upon  motion,  and  without  notice. ^^  An  action  of  eject- 
ment does  not  abate  by  the  death  of  the  lessor  of  plaintiff,  even 
though  he  be  tenant  for  life ;  ^"  and  so  an  action  for  trespass 
for  mere  profits  does  not  abate  under  the  statute  cf  Penn- 
sylvania.-" Under  the  statute  of  Massachusetts  if  the  sole 
tenant  in  a  writ  of  right  die,  his  heir  or  devisee  cannot 
be  summoned  in  to  defend  the  suit  under  Eevised  Statutes, 
chapter  93,  g  17,  but  the  action  abates. ^"^  Upon  the  death  of 
one  of  several  parties  plaintiff  in  an  action  of  trespass  quare 
clausum  /regit,  the  action  by  statute  1828,  chapter  112,  sur- 
vived to  the  co-plaintiffs;-*^  so  by  Revised  Statutes,  chapter 
93,    ?§  7,  12,  an  action  for    obstruction  of  a  right  of   way 


309  EEVITOK.  M07 

or  other  easement  might  be  prosecuted  upon  the  death  of  one 
of  two  co-plaintiffs  by  the  survivor.**  An  action  of  quare 
clausumf regit  did  not  abate  by  the  death  of  one  of  several  co- 
defendants  ;  ■'^  the  action  might  proceed  against  the  survivors ; 
but  the  executor  of  the  decedent  could  not  be  brought  in,  and 
joined  ls  a  party  defendant. ^^  An  action  given  by  statute 
against  the  trustees  of  a  corporation,  for  failure  to  file  the 
report  required  thereby,  is  penal  in  its  character,  and  does  not 
survive  against  the  executors  of  a  deceased  trustee.*^  THiere 
an  insurance  company  commences  to  cai*ry  on  business  before 
its  capital  stock  is  paid  up  ia  full,  each  of  the  stockholders  is 
jointly  and  severally  liable  for  all  the  debts  contracted  by  it; 
such  debts  survive  his  death,  and  may  be  enforced  against  his 
estate,^**  The  revival  of  an  action  docs  not  necessarily  carry 
with  it  the  whole  of  the  prior  right  of  action  ;  thus  when  a 
right  of  action  for  damages,  which  can  survive,  involves, 
mingled  with,  but  separable  from  such  damages,  other  dam- 
ages which  die  with  the  party,  recovery  cannot  be  maintained 
for  the  latter.-*^  If  a  feine  sole  plaintiff  marry  pending  the 
action,  the  defendant  pleading  the  matter  in  abatement  shall 
recover  costs  ;  ^"  so  a  bill  in  equity  abates  by  the  marriage  of  a 
female  plaintiff;  and  cannot  proceed  without  a  bill  of  revivor.^i 

1  Hurst  V.  Fisher,  1  Watts  &  S,  441. 

2  Denton  ?•.  Stephens,  32  Miss.  195;  but  see  Humphrey  v.  Irvnie, 
G  Smedes  &  M.  207. 

8    McNartV  ('.  Share.  2  Pa.  376  ',  Humphrey  v.  Irvine;  6  Smedes  & 
31.  487  ;  G.  G.  Bank  v.  Jefifers,  12  Smedes  <&  M.  4S7. 
4    G.  G.  Bank  v.  Jefifers,  12  Smedos  &  M.  487. 
o    Irwin  v.  Hamilton,  G  Serg.  &  R.  203, 

6  Young  r.  Pickens,  4o  3Iiss.  5->j  ;  Todd  v.  Young,  IG  La.  An.  162  ; 
Freeborn  v.  Denman,  8  IST.  J.  L.  116  ;  Davis  v.  Church,  I  Watts  &  S. 
242. 

7  Luebbsring  v.  Oberkoetter,  1  Mo.  App.  393. 

8  People  ex  rel.  Witherbee  v.  Supervisors,  70  X.  Y.  2.'>7. 

9  Hammond  v.  St.  John,  4  Yerg.  119;  generallj-  Scholey  v.  Hal- 
sey.  72  N.  Y.  583  ;  Given  v.  Albert,  5  Walts  &  S.  '-m. 

10  Patterson  v.  Copeland,  52  How.  Pr.  464 ;  generally  Scholey  r. 
Halsey,  72  X.  Y.  58^^ ;  Greiner  v.  Hummel,  2  Watts,  ;i46. 

11  Livermore  r-.  Bushnell,  5  Hun,  2S.J  ;  generally  Miller  r.  Koger.  9 
Humph.  2:«;  Brazee  r.  Blake,  o  Ohio,  ;i40;  Khenbottom  v.  Sadler,  19 
Ark.  497;  3I'Cube  v.  United  States,  4  Watts,  326 ;  Duly  v.  Hogan.  (« 
Me.  ;«1. 


^  107  KEvn^OR.  310 

12  Livermore  v.  Bushnell,  5  Hun,  285;  Given  v.  Albert,  5  Watts  <fe 
S.  ;«9 ;  Masten  v.  Elackvvell,  8  Hun,  314 ;  Brunton  v.  Gregory,  8  Ark. 
179. 

13  Masten  v.  Blackwell,  8  Hun,  314  ;  generally  Given  v.  Albert,  5 
Watts  &  S.  339;  Yates  v.  Hoffman,  5  Hun,  113;  compare  Duly  v. 
Hogan,  60  Me.  351. 

14  Scholey  v.  Halsey,  72  X.  Y.  .^382. 

15  Randall  v,  Sackett,  77  X.  Y.  482 ;  generally  Duly  v.  Hogan,  60 
Me.  ^■>2. 

16  Fisher  v.  Rutherford,  1  Bald.  192  ;  generally  Gilchrist  v.  Cannon, 
1  Cold.  .t86;  Dandridge  v.  Thinge,  4  Rand.  403;  compare  Archer  v. 
Collv.  4  Hen.  &  M.  411;  Thomas  v.  hmith,  2  Mass.  480;  Mitchell  v. 
Starbuck,  10  Mass,  9. 

17  Brewer  v.  Dodge,  28  Mich.  .360 ;  Garr  v.  Gomez,  9  Wend.  653  ;  see 
X.  A.  Coal  Co.  V.  Dyett,  2  Edvv.  Ch.118  ;  Change  of  Interest,  Luat  v. 
Stephens.  75  111.  509. 

18  Leavv  ?'.  Gardner,  63  N.  Y.  624  :  see  Hallahan  v.  Herbert,  57 
N.  Y.  410  ;  but  see  Barber  v.  Bnnn,  ;;4  X.  J.  L.  323. 

19  Teneick  v.  Flagg,  29  X.  J.  L.  23  ;  see  generally  Cregin  v.  Brook- 
lyn C.  T.  Ry.  Co.  .50  How.  Pr.  33. 

20  Jefcoat  v.  Knotts,  11  Rich.  654. 

21  Barnard  v.  Harrington,  3  Mass.  228  ;  generally  Hench  v.  Met/er, 
0  Scrg.  &  R.  273  ;  C^herry  v.  Hardin,  4  Heisk.  200. 

22  Hagarty  v.  Morris,  2  Week.  Notes,  154  ;  Arundel  v.  Springer,  71 
Pa.  St.  400. 

23  State  v.  Grand  Trunk  Ry.  61  ZNIe.  115. 

24  Stillman  v.  Hollenbeck,4  Allen,  391;  generally  Reed  v.  Cist,  7 
Serg.  tfe  R.  184 ;  Penrod  v.  Morrison,  2  Pa.  130  ;  Valentine  v.  Xorton, 
30  Me.  201. 

25  Keite  v.  Boyd,  16  Serg.  <fe  R.  300  ;  Mellen  v.  Baldwin,  4  Mass. 
481  ;  Lartimore  v.  Simmons,  11  Serg.  &  R.  185  ;  Thayer  ?>.  Dudley,  3 
Mass.  296  ;  Holmes  v.  Moore,  5  Pick.  253  ;  Little  v.  Conant,  2  Pick.  527  ; 
Baker  v.  Dansbee,  7  Heisk.  230. 

26  Pitts  7'.  Hale.  3  Mass.  322  ;  Mellon  v.  Baldwin,  4  Mass.  481  ;  Reist 
V.  Heilbreuner,  11  Serg.  &  R.  132. 

27  Pitts  V.  Hale,  3  Mass.  322  ;  Mellen  v.  Baldwin,  4  Mass.  481  ;  but 
see  Keite  v.  Boyd,  16  Serg.  &  R.  301. 

28  Stebbins  ?•.  Palmer,  1  Pick.  79  ;  Smith  v.  Sherman,  4  Cusli.  412  ; 
Lattimore  v.  Simmons,  13  Serg.  &  R.  184  ;  but  see  Flanders  v.  Bedal, 
51  X.  H.  74. 

29  Grim  v.  Carr.  31  Pa.  St.  533  ;  generally  Brawner  v.  Sturdevant,  9 
Ga.  69 ;  Clarke  v.  McClelland,  9  Pa.  St.  128  ;  but  see  Withee  t\ 
Brooks,  65  Me.  10  ;  see  Cutting  v.  Tower,  14  Gray,  183. 

'V)  Holmes  v.  Moore.  5  Pick.  258  ;  generallv  Sumner  v.  Tileston,  4 
Pick.  309  ;  but  see  Ten  Eyck  v.  Runk,  31  X.  J.  L.  428. 

31  B.  &  O.  Ry.  Co.  v.  Ritchie,  31  Md.  199  ;  generallv  see  Schott  v. 
Sage,  4  Phila.  87. 

32  Withee  v.  Brooks,  65  Me.  18  ;  Demond  v.  City  of  Boston,  7  Gray, 
514. 

;«    Prescott  V.  Knoles,  62  Me.  278  ;  see  Little  v.  Conant,  2  Pick.  527. 
34    Bradley  v.  Andrews,  51  Vt.  528  ;  generallv  Demond  v.  City  of 
Boston,  7  Gray,  544  ;  Cox  v,  X.  Y.  C.  &  H.  R.  Ry.  Co.  11  Hun,  623. 


311  KEVIVOR.  ^/   103 

35    Young  V.  Citizens  Bank  of  Baltimore,  31  Md.  70. 

m  Fells  V.  Mayor  etc.  of  Memphis, 2  Head,  fioT, ;  Polk  v.  Phimmer 
2  Humph.  506. 

87  Brown  v.  Kendall.  13  Gray.  272  ;  compare  Wilson  r.  Hall,  13 
Ired.  43J  ;  Blount  r.  Wright,  1  Winst.  iX). 

3S    Drake  v.  Curtis,  1  Cusii.  403 ;  Cutting  v.  Tower,  14  Gray,  IS-I. 

;«  Wilso!i  ?'.  Smith,  22  Gratt.  503 ;  see  Drake  v.  Curtis,  1  Cush.  400  ; 
Alley  V.  Hubbard,  19  Pick.  243 

40  Wilson  V.  Hall,  13  Ired.  48.9  ;  generally  Milliken  r.  Marlin,  66  III. 
17. 

41  Arundel  ?-.  Springer.  71  Pa.  St.  400;  Means  v.  Presbyieriau 
Church.  3  Pa.  St.  95. 

42  Alloy  r.  Hubbard,  19  Pick.  243. 

43  Boynton  v.  Rees,  9  Pick.  531. 

44  Richardson  v.  Pond,  l.'>  Gray,  380. 

45  Ilendrickson  r.  Herbert,  38  X.  J.  L.  298 ;  and  see  Sumner  ?•. 
rUeston,  4  Pick.  300  ;  Mechaiiics'  &  T.  Ins.  Co.  v.  Shang,  5  Pa.  St.  114. 

46  Meohar.ics'  &  T.  Ins.  Co.  v.  Shang,  5  Pa.  St.  114  ;  generallv  Treat 
V.  Dwiael,  5 )  Me.  344  ;  Gardner  v.  Walker,  22  How.  Pr.  407  ;  Bond  i\ 
Smith,  4  Hun,  49. 

47  Bank  of  California  v.  Collins,  5  Hun,  209  ;  Reynolds  v.  Mason,  54 
How.  Pr.  213. 

43  ChasG  V.  Lord,  77  X.  V.  5  ;  S.  C.  16  Hun,  :?70.  • 

49  Crcgin  v.  Brooklyn  C.  Ry.  Co.  83  X.  Y.  51)6. 

50  Haines  ?'.  Coriiss,  4  Mass.  6;50  ;  8wa!i  v.  V\''ilkinson,  14  Mass.  296. 

51  Boynton  r.  Boynton.  21  X.  II.  24G  ;  sec  0'2>real  v.  State,  2  Sneed, 


I  108.  Change  of  interest  afi:er  judgment  and  pending 
appeal.  —  In  an  action  for  damages  for  injury  to  the  person, 
where  judgment  is  for  the  plaintiff  in  the  court  below  but  i3 
reversed  by  the  district  court,  and  pending  appeal  in  the 
supreme  court  plaintiff  dies,  his  death  does  not  abate  the  suit.i 
If  the  appeal  be  in  the  nature  of  a  wi-it  of  eiTor  the  judgment 
is  merely  suspended,  not  annulled. "■^  In  an  action  of  tort  that 
dios  "With  the  parson  counsel  for  defendant  stipulated  as  a  con- 
dition for  a  continuance  that  in  case  of  the  death  of  defendant 
before  iimxl  judgment  the  alleged  cause  of  action  should  survive 
and  any  judgment  might  be  regarded  as  if  rendered  in  plaint- 
iffs lifetime;  also  that  in  case  of  such  death  plaintiffs  rtprc- 
sentatives  might  be  substituted  as  plaintiff;  held,  the  stipula- 
tion continued  in  force  until  final  judgment  although  in  the 
mean  time  a  verdict  and  judgment  in  plaiutifl's  favor  had  been 
set  aside. "^    In  general  a  petition  in  error  must  be  prosecuted 


g   108  KEAIVOR.  312 

by  a  party  to  the  record,  and  to  the  judgment  sought  to  be 
reversed ;  but  if  such  party  die  before  error  is  prosecuted,  his 
executor  or  heir,  according  to  the  nature  of  the  subject-matter 
of  the  judgment,  who  becomes  privy  thereto  by  operation  of 
law  may  commence  and  prosecute  a  proceeding  in  error  without 
first  being  made  a  party  to  the  judgment  by  review  or  other- 
wise.'* "When  one  of  several  appellants  dies  after  their  appeal 
is  perfected,  either  party,  appellant  or  appellee,  may  proceed 
to  have  the  cause  revived.^  The  proper  time  to  require  proof 
of  the  death  of  plaintiff  as  well  as  the  qualification  of  the  exe- 
cutor is  when  the  death  is  suggested  and  motion  to  revive  is 
made.^  In  case  of  the  death  of  a  party  after  judgment,  appeal 
must  be  taken  not  in  the  name  of  the  dead  party,  but  in  the 
name  of  him  in  whose  favor  the  action  might  have  been  reviv  d 
if  death  had  occurred  before  judgment.'^  Substitution  of  p.r- 
ties  can  only  be  made  in  the  manner  pointed  out  in  the  statute, 
the  same  rule  prevails  in  the  supreme  as  in  the  circuit  court.** 
If  a  party  die  pending  his  suit  in  the  supreme  court,  and  no  one 
administer  upon  his  estate,  it  may  be  revived  by  scire  facias 
against  his  heirs,  and  judgment  entered  for  or  against  them  in 
their  representative  capacity.^  "When  the  appellant  becomes  a 
bankrupt  after  his  appeal  is  perfected,  his  assignee  may,  upon 
production  of  the  proper  proof,  be  substituted  as  appellant  in 
the  case.'"  "Where  there  is  an  appeal  from  a  judgment  in  r,n 
action  for  divorce  which  simply  denies  divorce  to  the  party 
seeking  it,  and  pending  appeal  either  party  dies,  the  acticn 
abates  and  cannot  be  revived  ;'i  so  if  plaintifi"  die  after  app;i.l 
by  defendant  in  an  action  for  assault  and  battery,  an  award 
having  been  made  for  plaintiff,  no  substitution  can  be  made ; 
the  award  is  at  an  end.'^  Mandamus  also  must  be  classed  witli 
those  actions  that  die  with  the  person  ;  npon  the  death  of  i^eti- 
tioner,  in  the  supreme  court  the  proceeding  abates. '^  After 
judgment  had  been  obtained  in  an  action  by  the  town  of  B. 
against  X.,  the  town  of  B.  was  abolished  and  its  interest  in 
pending  actions  was  vested  in  the  town  of  A.,  held  that  an 
appeal  from  the  juelgment  should  be  prosecuted  in  the  name  of 
the  town  of  A.i*    'When  a  joint  judgment  is  rendered  against 


313  REvrs-OR.  ^  1Q8 

several  persons  the  writ  of  error  to  reverse  the  judgment  must 
be  brought  in  the  names  of  all  the  parties  if  living ;!»  but  il 
after  the  judgment  one  of  the  parties  dies,  the  -writ  may  be 
prosecuted  by  the  survivor. ^"^  Tlie  court  below  having  arrested 
a  judgment  obtained  by  a  husband  and  wife  for  slander  of  the 
wife,  they  brought  theu'  writ  of  error,  it  appearing  that  the 
wife  had  died  since  the  writ  was  brought,  it  was  abated.^' 
When  a  party  dies  after  a  cause  has  been  argued  and  submitted 
in  the  supreme  court,  but  befoi'e  decision,  the  judgment  will  bo 
rendered  as  of  the  day  when  it  was  taken  under  advisement.^^ 

1  Lewis  V.  St.  L.  &  1.  M.  Hy.  Co.  59  Mo.  495. 

2  Kinabrough  v.  Mitchell,  1  Head,  540  ;  Lewis  v.  St.  L.  &  I.  M.  Ry. 
Co.  o'J  3Io.  495  ;  Douglass  r.  Monford,  7  Yerg.  81. 

3  Cox  V.  X.  Y.  C.  &  H.  R.  Ry.  Co.  C.3  X.  Y.  41-5. 

4  Hanover  v.  Sperry,  35  Ohio  St.  245  ;  see  Taylor  v.  Elliott,  5-3  Ind. 
442  ;  Harwood  v.  Murphy,  13  X.  J.  L.  194. 

5  Paine  v.  Bank  of  Virginia,  4  Gratt.  150  ;  Benson  v.  "VVolverton, 
16  X.  J.  Eq.  112  ;  but  see  Jeflfries  v.  Flint,  55  Mo.  29. 

6  Bond  V.  Bishop,  18  La.  An.  5.50  ;  generally  Miltenberger  t'.  Mc- 
Guire,  15  La.  An.  486. 

7  Taylor  v.  Elliott,  53  Ind.  442  ;  see  Stone  r.Ringer,  4  Heisk.  265. 

8  Jeffries  v.  Flint,  55  Mo.  31  ;  Eger.v  r.  Power,  .38  Tex.  .378  ;  see  Tar- 
leton  V.  Cox,  45  Miss.  431  ;  generally  Howard  r.  \Valsh,  28  La.  An. 
848. 

9  Brown  v.  Rocco,  9  Heisk.  187  ;  Boyd  v.  Titzer,  6  Cold.  569  ;  see 
Tarleton  v.  Cox,  45  Miss.  431 ;  generallv  Howard  v.  Walsh,  28  La.  An. 
84S  ;  Reid  v.  Strider,  7  Gratt.  79  ;  Valley  Ry.  Co.  v.  Bohm,  29  Ohio  St. 
634. 

10  Herndon  v.  Howard,  9  Wall.  665  ;  generallv  Motfitt  v.  Cruise,  7 
Cold.  138  :  Esterbrook  v.  Ahern,  31  X.  J.  Eq.  4  :"  Schell  v.  Devlin,  82 
X^.  Y.  335  ;  O'Xeil  v.  Dougherty,  46  Cal.  576. 

11  Downer  r.  Howard,  44  Wis.  87. 

12  Miller  v.  Umbepower,  10  Serg.  &  R.  31. 

13  Booze  V.  Humbird,  27  Md.  3. 

14  Supervisors  of  La  Pointe  v.  O'Malley,  47  WLs.  333  ;  and  see  But- 
ternut V.  O'Malley,  50  Wis.  3.33. 

15  Patterson  v.  Butterworth,  4  Yerg.  158  ;  Huff  r.  Miller,  2  Swan, 
86  ;  compare  Gates  r.  Goodloe,  101  U.  S.  613. 

16  Huff  V.  Miller,  2  Swan,  SO  ;  generallv  Xorris  r.  Sullivan,  47  Conn. 
477  ;  compare  Gates  v.  Goodloe,  101  U.  S.  613. 

17  Stroop  1".  Swarts,  12  Serg.  &  R.  76. 

18  Mead  v.  Mead,  1  Mo.  App.  254  ;  generallv  McLean  v.  State,  8 
Heisk.  288;  Benson  v.  Wolverton,  16  X.  J.  Eq."  Ill  ;  Brodie  v.  Wat- 
kins,  31  Ark.  332  ;  Flock  v.  Wyatt,  49  Iowa,  46>< ;  Mitchell  ?•.  Overman, 
103  r.  S.  62  ;  Holloway  ?•.  Galliac.  4'»  Cal.  14;)  :  Vroom  v.  Ditmas.  ." 
Paige,  529  ;  Campbell  r.  Mesier,  4  Johns.  Ch.  .'^2  ;  Perrv  v.  Wilson,  7 
Mass.  .395 ;  Yaple  v.  Titus,  41  Pa.  St.  195  ;  Blaisdcll  v.  Harris,  52  X.  H. 
191. 

Parties  — 27 


109  IXTERVENTIOX.  314 


CRAPTEE  XYII. 

IXTEEVENTION. 

§  109.    Generallj'  of  intervention. 

i  110.    Of  the  interest  necessary  to  entitle  a  person  to  intervene. 

?  111.    Of  the  rights  of  interveners. 

2  109.  Generally  of  intervention. — Intervention  is  defiued 
to  be  the  act  by  which  a  third  person  becomes  a  party  to  a  suit 
pending  between  other  persons,  the  intervention  is  made  either 
to  be  joined  to  the  plaintiff,  and  to  claim  the  same  thing  he  does, 
or  some  other  thing  connected  with  it,  or  to  join  the  defendant 
and  with  him  to  oppose  the  claim  of  the  plaintiff  which  it  is 
his  interest  to  defeat.^  An  intervener  is  a  person  who  volun- 
tarily interposes  in  an  action  or  other  proceeding  with  the 
leave  of  the  coiirt.^  "When  plaintiif  brought  suit  as  the  mother 
of  the  real  parties  in  interest,  asserting  no  title  in  herself,  and 
subsequently  the  latter  by  their  guardian  ad  litem  filed  a  com- 
plaint setting  up  the  same  cause  of  action,  the  subsequent 
appearance  is  not  an  intervention,  but  merely  a  substitution, 
and  a  stipulation  made  by  the  first  plaintiff  will  bind  the 
second.^  An  intervention  takes  place  when  the  order  is  made 
permitting  the  person  to  become  a  party;  the  complaint  in 
intervention  is  filed  Avhen  leave  of  the  court  is  granted ;  ^  but  a 
trial  had  before  its  service  upon  the  party  against  whom  the 
intervenor  asserts  a  claim  is  premature,  still  erroneous  pro- 
cedure in  that  respect  does  not  involve  any  question  of  juris- 
diction.^  A  plea  to  the  vagueness  and  insufficiency  of  an 
intervention  amounts  to  a  waiver  of  its  service.*^  When  proi> 
erty  seized  in  a  suit  has  been  released  to  defendant  upon  a 
proper  bond  given,  intervention  is  not  the  proper  remedy  for  a 
third  person  claiming  the  same;  he  should  pursue  it  in  the  hands 
of  the  defendant,'^  In  general  it  is  immaterial  at  what  stage 
of  the  proceeding  the  intervenor  interposes  his  petition  pre- 


315  INTEBVENTIOX.  §    109 

vious  to  final  submission  of  the  cause,  provided  the  main  suit 
be  not  delayed  to  the  prejudice  of  other  parties  litigant.**  He 
could  claim  and  would  be  allowed  time  to  cite  the  party  against 
whom  it  is  directed  and  the  delays  to  answer  usually  given.** 
The  parties  to  a  suit  are  not  obliged  to  take  notice  of  a  petition  of 
intervention  until  notice  of  its  filing  is  served  upon  them  ;  when, 
therefore,  prior  to  such  notice  being  given  the  original  cause  is 
settled,  the  petition  must  be  dismissed.^'^  So  a  person  may  not 
intervene  in  an  action  after  a  judgment  has  been  rendered  there- 
in,^^  particularly  if  the  cause  stands  on  appeal  to  the  supreme 
court. ^-  The  right  of  intervention  given  by  statute  exists  only 
in  actions  which  are  purely  civil  in  their  nature ;  in  the  statu- 
tory proceeding  in  the  nature  of  quo  xccii-ranto  the  right  does 
not  exist  ;^^  but  it  seems  the  right  exists  in  pi'oceedings  for 
writs  of  prohibition  1*  and  mandamus. ^^  A  bill  of  interven- 
tion by  which  a  stranger  seeks  to  be  introduced  as  a  party  into 
a  suit  in  chancery  for  the  purpose  of  amending  a  bill  which 
the  plaintiff  has  abandoned,  and  then  to  conduct  that  suit  in 
his  own  name,  cannot  be  maintained. ^^  When  the  demand  of 
an  intervenor  does  not  grow  out  of  the  principal  action,  or  is 
specially  iiermitted  by  law,  it  must  be  dismissed.^'  A  general 
creditor  will  not  be  permitted  to  intervene  in  an  equitable 
action  and  defend  yro  interesse  suo,  he  has  no  standing  in  a 
court  of  equity ;  ^^  neither  can  he  be  allowed  to  tender  an  issue 
which  can  be  tried  only  by  a  change  in  the  form  of  proceed- 
ings and  a  continuance  of  the  cause  for  testimony.^'*  In  eject- 
ment a  person  who  is  in  no  way  connected  with  the  right  of 
possession  asserted  by  the  plaintiff  or  the  defendant,  but  on  the 
contrary  alleges  title  in  himself  paramount  to  both,  cannot 
intervene.^"  "When  a  defendant  has  excepted  to  plaintiff's 
petition  on  the  gi'ound  of  non-joinder  of  certain  persons,  he  is 
not  in  a  position  to  except  to  the  intervention  of  such  persons 
in  the  suit ;  2'  and  so  it  is  no  ground  of  complaint  that  neces- 
sary parties  to  a  suit  ai-e  permitted  to  make  themselves  parties, 
at  their  own  instance,  by  intervention. -- 

1    Bouvier  Law  Diet,  title  Intervention  ;  Hyman  i\  Cameron,  46 
Miss.  723 ;  Lewis  r.  Harwood  28  Minn.  433. 


g   110  rSTERVENTIOX.  316 

2    Ilapalje  &  Lawrence  Law  Diet,  title  Interveiior. 

8  Temple  v.  Alexander,  53  Cal.  8. 

4  Ah  Goon  ?•.  Superior  Court,  fil  Cal.  556. 

5  Ah  Goon  v.  Superior  Court,  61  Cal.  .556  ;  see  Chism  et  al.  t.  Ong, 
33  La.  An.  702. 

6  Giraud  v.  Mazier,  13  La.  An.  148. 

7  Burbank  v.  Taylor,  23  La.  An.  751  ;  see  Cass  v.  Ronark,  25  La.  An. 
353. 

S  Smalley  v.  Taylor,  33  Tex.  669  ;  Chi.sm  et  al.  v.  Ong, :«  La.  An. 
702  ;  Van  Goidon  v.  Ormsby,  55  Iowa,  6S4  ;  Hocker  v.  Kellej-,  14  Cal. 
165  ;  Coburn  v.  Smart,  53  Cal.  744. 

9  Chism  et  al.  v.  Ong,  3:J  La.  An.  702;  Moraii  v.  Le  Blanc,  6  La. 
An.  113. 

10  Xat.  Bank  v.  Gill,  50  Iowa,  427  ;  Cass  v.  Ronark,  25  La.  An.  ;!o4  ; 
Van  Bibber  v.  Gave,  12  Tex.  15. 

11  Carey  v.  Brown,  58  Cal.  184  ;  Woolfolk  v.  Woolfolk.  30  La.  An. 
145  ;  see  Succession  of  John  Clark,  30  La.  An.  804  ;  Ex  parte  Branch 
Sons  &  Co.  53  Ala.  140. 

12  Blatchford  ?-.  Xewberry,  100  111.  492  ;  but  see  Boutte  v.  Boutte, 
30  La.  An.  177;  Succession  of  Clark,  30  La.  An.  804;  Sage  r.  Central 
Ey.  Co.  93  U.  S.  412. 

13  People  ex  rel.  Glidden  v.  Green,  1  Idaho,  235. 

14  Ah  Goon  r.  Superior  Court,  61  Cal.  5-55. 

15  State  ex  rel  v.  Pilsbury,  31  La.  An.  8. 

16  Hyman  v.  Cameron,  46  Miss.  726. 

17  Bryan  v.  Atchison,  2  La.  An.  463  ;  Burditt  v.  Glasscock,  25  Tex. 
(Sup.)  45. 

18  People  r.  Erie  Ry.  Co.  56  How.  Pr.  122  ;  and  see  Askew  r.  Cars- 
well,  63  Ga.  142  ;  Horn  v.  Volcano  W.  Co.  13  Cal.  62. 

19  Van  Gorden  v.  Ormsby,  55  Iowa,  684. 

20  Porter  v.  Garrissino,  51  Cal.  560. 

21  Morrison  v.  Loftin,  44  Tex.  22. 

22  Norvell  v.  Phillips,  46  Tex.  177- 


l  110.  Of  the  interest  necessary  to  entitle  a  person  to 
intervene  in  a  pending  suit.  — The  intervener's  interest  musi 
be  such  that  if  the  ori^iur.l  action  Lad  never  been  commenced, 
and  he  had  brought  it  as  the  sole  plaintiff  he  would  have  been 
entitled  to  recover  in  his  own  name  to  the  extent  at  least  of  a 
part  of  the  relief  sought ;  or  if  the  action  had  been  brought 
against  him  as  a  defendant,  he  would  have  been  able  to  defeat 
the  recovery  in  part  at  least ;  his  interest  may  be  either  legal 
or  equitable.'  To  entitle  a  person  to  intervene  he  must  by 
averment  show  that  his  rights  are  involved  in  the  cause  which 
is  being  litigated,  that  he  is  entitled  to  the  relief  which  he 


317  IN-TEK\-EXTION.  ^110 

asks,  and  his  application  must  be  presented  in  time  to  enable 
the  parties  in  the  cause  to  meet  and  contest  the  issues  which  he 
may  present. ^  An  intervention  cannot  be  maintained  when 
the  demand  is  not  incidental  to  the  main  action,  and  where  the 
intervenor  neither  joins  the  plain tiflF  in  claiming  the  same 
thing,  or  anything  connected  with  it,  nor  unites  with  the 
defendant  in  resisting  the  claim  of  the  plaintiff,  nor  claims  a 
privilege  on  the  proceeds  of  anything  which  has  been  sold,  or 
pretends  to  be  the  owner  of  the  thing  which  has  been  seized.^ 
If  a  person  has  an  interest  in  the  matter  in  litigation,  or  in  the 
success  of  either  of  the  parties  he  has  a  right  to  intervene,  the 
Cod3  does  not  attempt  to  specify  what  or  how  great  that  inter- 
est shall  be,  therefore  any  interest  is  sufficient,  and  so  it  is 
immaterial  that  the  intervenor  may  protect  that  interest  iu 
some  other  manner.*  The  equitable  owner  of  api'omissory  note 
may  assert  his  rights,  and  obtain  a  recovery  by  intervening  in 
an  action  at  law  by  the  legal  owner  against  the  maker.^  The 
fact  that  the  property  or  fund  to  which  the  intervenor  sets  up  a 
claim  has  been  placed  by  an  order  of  court  in  the  suit  between 
the  original  parties  in  the  hands  of  a  receiver,  would,  if  it  had 
any  effect,  rather  strengthen  than  detract  from  his  right  to 
intervene  and  assert  his  interest  in  the  fund.**  An  assignee  for 
the  benefit  of  creditors  may  intervene  in  an  attachment  suit 
brought  against  his  assignor  prior  to  the  assignment,  and  set 
up  a  claim  against  the  plaintiff  therein  for  damages  sustained 
by  his  assignor  by  reason  of  the  wrongful  suing  out  of  the 
attachment,  and  this  although  the  assignor  has  himself  pleaded 
the  same  as  a  counter-claim  ; '  and  so  one  who  claims  the  owner- 
ship of  p:n-sonal  property  attached  in  a  suit  to  which  he  is  not 
a  party,  who  has  recovered  actual  possession  of  the  property 
under  sections  2996  and  2997  of  the  Code  of  Iowa,  may  inter- 
vene in  the  attachment  suit  by  virtue  of  section  3016,  and  have 
his  rights  adjudicated.**  Subsequent  attaching  creditors  may 
intervene  in  the  action  by  the  prior  credicors  when  the  first 
attachment  was  fraudulently  obtained,  and  there  is  not  suffi- 
cient property  to  pay  both  claims.'*  And  so  if  the  first  suit  was 
prematurelv  brought. i"    In  such  case  the  allegations  in  the 


g   110  INTEKVENTION.  318 

pleading  on  the  part  of  the  intervenor  traversing  the  allega- 
tions of  the  complaint  have  the  same  effect  as  denials  in  the 
answer,  and  require  affirmative  proof  by  the  plaintiff  of  Lis 
cause  of  action. ^^  When  the  homestead  is  attached  in  a  suit 
agp.inst  the  husband,  the  wife  may  assert  her  rights  by  an  inter- 
vention ;  ^2  and  so  when  suit  is  brought  to  foreclose  a  mortgage 
upon  premises  claimed  as  a  homestead,^ ^  When  suit  had  been 
brought  upon  a  note  by  the  payee,  and  subsequently  he  assigned 
the  same  to  a  third  person,  the  latter  was  permitted  to  intervene 
and  protect  his  rights  in  the  original  action. ^^  In  a  suit  by  the 
assignee  of  a  bill  of  lading  against  the  forwarding  merchants  for 
unlawful  detention  of  the  goods,  the  consignors  were  permitted 
to  intervene  and  defend  upon  the  ground  that  the  goods  were 
detained  by  virtue  of  the  ir  right  of  stoppage  in  transitu . ^^  When 
the  title  to  real  property  is  directly  involved  in  a  pending  suit, 
any  one  interested  in  the  subject-matter  of  litigation  at  the  time 
of  the  commencement  of  the  action  which  may  be  affected  by  the 
decree  has  the  right  to  intervene,  if  demanded  in  a  proper  man- 
ner and  at  a  proper  time ;  but  if  the  title  is  only  indirectly  in 
issue,  i.  e.,  levied  upon  as  the  property  of  the  original  defend- 
ant, in  such  case  a  third  person  in  possession,  in  order  to  entitle 
himself  to  the  right  to  intervene,  should  allege  siich  facts  as 
would  authorize  a  court  of  equity  to  grant  him  a  writ  of  inj unc- 
tion.i**  A  purchaser  of  a  tract  of  land  by  metes  and  bounds 
from  one  party  to  a  partition  suit  pending  the  proceeding 
should  not  be  allowed  to  intervene  therein  ;  but  a  purchaser  by 
metes  and  bounds  from  a  tenant  in  common  may  intervene  in 
a  partition  suit,  by  showing  that  he  is  a  bona  fide  purchaser,  or 
by  setting  up  other  equities  that  could  only  be  adjusted  by  such 
intervention.  1'  One  who  was  sole  legatee  of  her  husband,  and 
has  conveyed  all  his  interest  in  lands  which  had  been  previously 
sold  under  a  trust  deed,  cannot  intervene  in  an  action  by  the 
purchaser  to  quiet  his  title,  and  ask  that  the  sale  be  set  aside.  ^^^ 
In  this  State  (Texas)  the  law  confers  the  absolute  right  upon 
landlords  to  make  themselves  parties  to  suits  against  their 
tenants.  No  particular  rule  being  prescribed  by  law,  it  seems 
that  to  be  most  consistent  with  general  practice  an  oral  motion 


319  LN-TEEVENTION.  ?    110 

should  he  made  to  the  court  for  leave  to  intervene  in  the 
action.^'*  In  ciu  action  brought  under  section  two  thousand 
three  hundred  and  twenty-six,  United  States  Picvised  Statutes, 
to  determine  the  right  of  possession  to  a  mining  claim,  thoso 
persons  cnh*  who  have  filed  claims  to  the  had  iu  the  United 
States  land  ofSce  are  entitled  to  intei-vene.^"  Tsliether  in  any 
case  under  the  Code  of  Civil  Procedure  of  California  (§  387), 
an  intervention  is  proper  iu  an  action  of  ejectment  is  not 
decided,  but  a  thiixl  p3rson  cannot  intervene  in  such  action 
for  the  purpose  of  quieting  his  title  as  against  plaintiff  to 
a  tract  of  land  not  in  controversy  between  plaintiff  and  defend- 
ant.-i  A  simple  contract  creditor  has  no  such  intei'est  in  a 
pending  suit  of  foreclosure  as  will  warrant  an  intcrvention.^- 
In  an  action  against  a  county  to  enforce  a  claim  agi-eed  to  by 
its  supervisors,  a  tax  payer  has  no  right  to  intervene,  unless 
it  be  shown  that  the  supervisors  exceeded  their  powers,-^  or 
acted  in  bad  faith  ;  -'  but  in  a  suit  to  enjoin  the  collection  of 
a  tax  voted  to  aid  the  construction  of  a  railroad,  the  company 
constructing  the  road  and  to  be  benefitted  by  the  tax  may 
intervene  for  the  purpose  of  intei-posiug  a  defense."-^^  When 
application  is  made  to  a  court  for  the  appointment  of  a  trustee, 
any  parson  w^ho  claims  the  property  as  his  own  has  the  right  to 
appear  and  be  made  a  party,  and  to  resist  the  appointment  on 
the  gi'ound  that  there  is  no  trust. -'^  In  a  suit  to  enjoin  the 
enforcement  of  a  deed  of  trust  mado  to  secure  the  payment  of 
promissory  notes,  to  which  suit  the  maker  and  payee  and  trustee 
ai-e  made  defendants,  it  is  proper  to  allow  the  assignees  of  the 
notes  to  intervene."'^'  In  a  suit  by  an  administrator  upon  a  note 
due  the  estate,  it  is  error  to  allow  the  attorneys  for  plaintiff  to 
intervene  upon  a  contract  with  the  lattsr  for  a  certain  stipulated 
sum  out  of  the  recovery. ^s 

1  Pomerov.  Remedies  and  Remedial  Risrhts,  ?  4.'»  ;  Pool  v.  Sand- 
ford,  52  Tox.  6;«  ;  Dutil  r.  Pacheco,  21  Cal.  441  ;  Horn  v.  Vuk-aiio  W. 
Co.  13  Cal.  6;j ;  Brown  v.  Saul  et  al..  4  Mart.  N.  8.  4o6  ;  Harlan  r. 
P2ureka  M.  Co.  10  Xev.  <.H  ;  Lewis  r.  Harwood,  28  Minn.  4X5. 

2  Smith  V.  Allen,  28  Tex.  501. 

3  Moreau  v.  Moreaii,  25  La.  An.  215. 

4  Coffey  v.  Greenfield.  55  Cal.  -iS^i ;  Lewis  v.  Harwood.  2^  Minn.  433  ; 
Marsh  v.  Green,  79  111.  387  ;  Taylor  v.  Adair,  22  Iowa,  282. 


§111  INTERVENTION.  320 

5  Taylor  v.  Adair,  22  Iowa,  281;  Stitch  v.  Goklner.  as  Cnl.  GIO ; 
Gribble  v.  Haynes,  22  La.  An.  141. 

6  Graves  v.  Hall,  27  Tex.  154. 

■7  Dunham  v.  Greenbaum.  56  Iowa,  303;  generally  Meyberg  v. 
Steagall,  51  Tex.  354  ;  Gayoso  Sav.  Inst.  v.  Burrow,  37  Tex.  SO. 

8  Tuttle  r.  Wheaton,57  Iowa,  305;  and  see  Field  v.  Harrison,  20 
La.  An.  411 ;  King  v.  Harper,  33  La.  An.  496. 

9  Coghill  V.  Marks,  29  Cal.  676  ;  Sheyer  v.  Ihmels,  21  Cal.  286. 

10  Davis  V.  Eppinger,  18  Cal.  381 ;  Sheyer  v.  Ihmels,  21  Ciil.  286. 

11  Sheyer  v.  Ihmels,  21  Cal.  286. 

12  Stoddart  v.  McMahan,  35  Tex.  299;  generally  Irion  v.  Mills,  41 
Tex.  313. 

13  Moss  V.  Warner,  10  Cal.  297  ;  Mabury  v.  Ruiz,  58  Cal.  12. 

14  Converse  v.  Sorley,  39  Tex.  524. 

15  Chandler  v.  Fulton,  10  Tex.  13.] 

16  Whitman  r.  Willis,  51  Tex.  426. 

17  Griffin  v.  Wilson,  39  Tex.  219. 

18  Ingle  V.  Jones,  43  Iowa,  293. 

19  Caldwell  v.  Graim,  32  Tex.  325. 

20  M.  B.  Con.  G.  M.  Co.  v.  Debonr,  61  Cal.  265. 

21  Bosecrans  v.  Ellsworth,  52  Cal,  511. 

22  Horn  ?>.  Volcano  W.  Co.  13  Cal.  69  ;  generally  Askew  v.  Carswell, 
63  Ga.  162  ;  People  v.  Erie  By.  Co.  56  How.  Pr.  122. 

23  Cornell  College  v.  Iowa  Co.  32  Iowa,  .521. 

24  Cornell  College  v.  Iowa  Co.  32  Iowa,  521  ;  Greeley  v.  Co.  of  Lyon, 
40  Iowa,  74. 

25  Brown  v.  Bryan,  31  Iowa,  557. 

26  Bass  V.  Fonteleroy,  11  Tex.  702;  and  see  CofiFey  ?,'.  Greentield,  55 
Cal.  382. 

27  Smith?).  Allen,  28  Tex.  499. 

28  Kobb  V.  Smith,  40  Tex.  94. 

§  1 1 1.  Of  the  rights  of  interveners.  —  A  ruling  of  the  court 
refusing  an  intervention,  if  correct  at  the  time  it  is  made,  does 
not  afterward  become  incorrect,  by  reason  of  the  claimant  chang- 
ing his  character  from  an  individual  to  a  representative.^  An 
intervenor  stands  in  the  character  of  plaintiff  before  the  court 
as  to  the  nature  of  his  title,  and  the  object  of  his  demand,  and 
is  governed  in  his  pleadings  by  the  rules  of  practice  which 
apply  to  plaintiffs  in  principal  demand  ;  ^  and  therefore  he  must 
establish  the  correctness  of  his  own  claim  before  he  can  inter- 
pose the  defense  of  prescription  to  plaintiff's  demand.^  An 
intervenor  cannot  contest  the  right  of  plaintiff  to  bring  the 
action,  nor  to  stand  in  judgment;  he  must  take  the  action  as 


321  I>'TEKYEXTIOX.  ?    Ill 

be  finds  it;^  neither  can  lie  object  to  the  form  of  the  action,^ 
nor  urge  irregularities  therein;*^  neither  can  he  plead  excep- 
tions having  for  their  object  the  dismissal  of  the  suit ;'  and  so  a 
person  cannot  by  means  of  intervention  compel  parties  to  liti- 
gate for  his  benefit  or  gratification.**  If  a  person  intervening 
has  rights  that  need  protecting,  but  which  cannot  be  deter- 
mined ill  the  main  action  without  delaying  the  suit,  he  ought 
not  to  intervene,  but  should  commence  an  original  action;^ 
although  he  may  not  delay  the  trial,  still  he  is  entitled  to  time 
necessary  to  have  his  intervention  served,  and  put  at  issue  be- 
fore the  cause  is  tried.^^  When  suit  was  brought  by  a  bank  to 
recover  the  price  of  property  sold,  and  during  the  pendency  of 
the  action  a  thii'd  person  is  subrogated  to  the  rights  of  plaint- 
iff, such  third  person  is  competent  to  stand  in  judgment  as 
intervenor ;  ^^  but  an  intervenor  may  not  without  the  consent 
of  plaintiff  substitute  himself  in  the  place  and  stead  of  defend- 
ant.^- A  third  person  may  by  intervention  have  an  attachment 
dismissed,  and  be  decreed  to  be  the  owner  of  the  property 
attached.  1-^  "\Tlaen  one  intervenes  and  bonds  property  attached, 
he  stands  in  the  relation  of  surety,  and  cannot  be  heard  to 
constnie  his  obligation  so  as  to  defeat  the  law ;  i*  but  if  he 
claims  an  interest  in  the  subject-matter  of  the  suit,  and  by 
leave  of  court  interposes  his  claim  as  defendant,  and  there  is 
fraud  and  collusion  between  the  original  parties,  whereby  his 
interests  are  prejudiced,  he  may  plead  and  prove  that  fact.^^ 
It  is  settled  in  this  State  (Texas)  that  a  person  may  intervene 
in  a  suit  to  protect  his  own  rights,  and  in  doing  so  may  assert 
an  interest  adverse  to  both  plaintiff'  and  defendant.^''  An  iuter- 
s-enor  against  whom  no  relief  is  prayed  may  dismiss  his  inter- 
vention, although  one  of  the  parties  in  the  action  has  died,  and 
his  successor  in  interest  has  not  been  brought  in  as  a  party  ;  ^' 
and  so  when  no  default  is  taken,  and  no  issue  joined  on  the 
petition  of  intervention,  the  plaintiff  may  make  his  judgment 
by  default  against  the  defendant  final,  without  the  cause  being 
fixed  for  trial;  and  the  intervention  will  fall  upon  the  decision 
of  the  main  suit;i^  but  issue  being  properly  joined  the  inter- 
venor has  a  standing  in  court  until  his  rights  are  adjudicated, 


§111 


INTEKTENTIOX. 


even  though  all  the  parties  are  dismissed  from  the  suit,  save 
the  one  from  whom  he  claims  relief.i'*  When  the  defendant 
has  not  appeared  in  the  original  suit,  and  has  not  been  served 
with  process  to  answer  the  petition  of  the  intervener,  it  is 
error  to  render  judgment  against  him,  and  in  favor  of  the  lat- 
ter ;  but  if  he  has  appeared  he  is  obliged  to  take  notice  of  the 
Intervention.^''  A  suit  must  be  commenced  in  the  name  of  the 
party  legally  or  equitably  entitled,  and  the  fact  that  an  inter- 
vener who  is  the  real  party  in  interest  unites  with  plaintiff  in 
his  prayer  for  relief  does  not  change  the  rule,  so  as  to  permit 
a  recovery  by  plaintifif.^^  When  a  creditor  has  intervened,  and 
made  himself  party  to  a  suit  brought  by  a  wife  against  her 
husband,  he  cannot  in  another  form  of  action  attack  the  judg- 
ment rendered,  he  is  bound  by  the  decree, 2'-^  "When  the  right 
to  intervene  has  been  denied  in  the  court  below,  a  proper  case 
being  shown,  it  may  be  secured  and  enforced  in  the  appellate 
court ;  '^'^  the  right  of  appeal  is  immediate  upon  the  sustaining 
of  an  objection,  by  demurrer  to  the  right  of  intervention.^^  He 
cannot  appeal  from  the  final  judgment  entered  between  the 
original  parties:  he  is  not  a  party  aggrieved  by  that  judg- 
mcnt.'^^  After  a  petition  of  intervention  has  been  filed,  an 
appeal  will  lie  from  an  order  striking  it  from  the  files ;  ^^  so 
also  from  an  order  refusing  to  do  so. 2'  When  proceedings  in 
error  are  prosecuted  by  the  intervener,  the  defendant  in  the 
original  suit  should  be  made  a  party  thereto.^^  After  a  cause 
is  regularly  before  the  appellate  court,  it  can  only  be  dismissed 
by  consent  of  all.  parties  to  the  appeal, ■'^*'  When  separate 
appeals  are  taken  by  an  intervener,  and  by  defendant,  in  an 
action  of  ejectment,  from  a  judgment  entered  in  favor  of  plaint- 
ifi",  and  from  an  order  denying  the  motion  of  the  intervener 
for  a  new  trial,  an  affirmance  of  the  judgment  in  the  former 
appeal  will  not  oust  the  jurisdiction  of  the  supi'eme  court  to 
reverse  the  judgment  upon  the  appeal  taken  by  the  intervenor, 
from  the  order  denying  the  motion  for  a  new  trial ;  the  pro- 
ceedings are  independent  of  each  other.^" 

1  ClevplaiKl  ?•.  Cumstock,  22  La.  An.  598. 

2  Clapp  V.  Phelps,  19  La.  An.  462  :  see  Speyer  v.  Ilimels.  21  Cal.  2SG. 


323  IN"TERVEXTIOX.  ^111 

3  Walker  v.  Simon,  21  La.  An.  671  ;  but  see  Speyer  v.  Ihrnels,  21 
Cal.  2S6. 

4  Cordill  ?•.  .Succ.  of  McCullough.  20  Lu.  An.  175  :  Kenner  v.  Ilolli- 
dav,  li)  La.  1.5-5  ;  V)  La.  (X.  8.,  104  ;  West  v.  His  Creditors.  >»  Kob.  (La.) 
128  ;  Yeattnaii  v.  Estill,  -i  La.  An.  222  ;  Fleming  v.  Shields,  21  La.  An. 
119. 

5  Heirs  of  Bedel  r.  Hayes,  21  La.  An.  643  ;  Van  Gorden  v.  Ormsby, 
w  Iowa,  664. 

6  West  V.  His  Creditors.  S  Rob.  fLa.)  123  ;  Carroll  r.  Bridewell,  27 
La.  An.  241  ;  Smith  v.  Allen,  23  Tex.  501. 

7  West  V.  His  Creditors,  8  Rob.  (La.)  12S  ;  Fleming  v.  Shields,  21 
La.  An.  118. 

8  Cleveland  t\  Comstock,  22  La.  An.  508. 

9  Van  Gorden  v.  Ormsby,  55  lo^^a,  CtVl. 

10  Sllbernagle  v.  Silbernagle,  32  La.  An.  766 ;  and  see  Dnbroca  v. 
Her  Husband.  3  La.  An.  332;  Smith  v.  Strickland,  19  La.  An.  118; 
Perkins  r.  Perkins,  20  La.  An.  25S  ;  Gaines  r.  Page,  15  La.  An.  103. 

11  L'nion  Bank  r.  Bowman,  15  La.  An.  272. 

12  Clapp  V.  Phelps,  19  La.  An.  462. 

13  Field  v.  Harrison,  20  La.  An.  411, 

14  Ledda  v.  Mammas,  17  La.  An.  315  ;  see  generally  Duperier  v. 
Flanders,  20  La.  An.  29. 

15  Mussina  v.  Goldthwaite,  34  Tex.  131  ;  and  see  Parker  i-.  Xolan, 
37  Tex.  86. 

18  Smalley  r.  Taylor,  33  Tex.  669  ;  McDonough  i-.  Cross,  40  Tex.  238. 
17    Sheldon  v.  Gunn,  56  Cal.  583. 

IS  Yale  V.  Hoopes.  12  La.  An.  460  ;  and  see  First  Nat.  Bank  of  Leon 
V.  Gill,  50  Iowa,  427 ;  Bryan  v.  Lund,  25  Tex.  99. 

19  The  Joliet  I.  &  S.  Co.  v.  The  C.  C.  A  W.  Rv.  Co.  51  Iowa,  304  ; 
Wright  V.  Neatherbv,  14  Tex.  212  ;  Elliott  r.  I  vers,  6  Nev.  23.7  ;  Poehl- 
mann  v.  Kennedy,  43  Cal.  207. 

20  Bryan  v.  Lund,  25  Tex.  99 ;  see  Bradley  v.  TrousJals,  15  La.  An. 
206. 

21  Browning  v.  Atkinson,  46  Tex.  G03. 

22  Markham  r.-Q'Connor,  23  La.  An.  638. 

23  Perkins  v.  Perkins.  20  La.  An.  253  :  Smith  v.  Allen,  2S  Tex.  501  ; 
Eccles  V.  Hill,  13  Tex.  65 ;  Stich  v.  Goldner,  33  Cal.  OiO ;  Cohurn  v. 
Smart,  5-3  Cal.  744  ;  but  see  Bennett  v.  Whitcomb,  25  Minn.  149. 

24  Stich  I'.  Goldner,  38  Cal.  610  ;  and  see  People  v.  Pf  oilier,  59  Col.  90. 

25  People  V.  Pfeiflfer,  59  Cal.  90. 

26  People  v.  Pfeiflfer,  59  Cal.  90. 

27  First  Nat.  Bank  of  Leon  v.  Gill,  50  Iowa,  423. 

2S  Werms  v.  Sheriff  etc.  48  Te.x.  432  ;  and  see  Moodie  r.  Canibot,  14 
La.  An.  153. 

29  Perkins  v.  Perknis,  20  La.  An.  258  ;  and  see  Mycr  v.  Bupree.  25 
La.  An.  216. 

30  Douner  v.  PiUmer,  45  Cal.  133. 


9   113  INTEKPLEADEE.  324 


CHAPTER  XYIII. 


INTEKPLEADEE. 

?  112.  Definition  and  nature  of  interpleader. 

?  113.  When  a  bill  of  interpleader  may  be  maintained. 

?  114.  Who  may  file  a  bill  of  interpleader. 

§115.  Eefect  of  interpleader. 

?  112.  Definition  and  nature  of  interpleader.  —  When  a 
person  is  in  possession  of  property  in  which  he  claims  no  inter- 
est, br;t  to  which  two  or  more  other  persons  lay  claim,  and  he, 
not  knowing  to  whom  he  may  safely  give  it  up,  is  sued  by 
either  or  both,  he  may  compel  them  to  interplead. ^  Inter- 
pleader is  a  proceeding  in  the  action  of  detinue  by  which  the 
defendant  states  the  fact  that  the  thing  sued  for  is  in  his  hands 
and  that  it  is  claimed  by  a  third  person,  and  that  whether  such 
person  or  plaintiff  is  entitled  to  it  is  unknown  to  the  defendant, 
and  therefore  he  prays  that  a  process  of  garnishment  may  be 
issued  to  compel  such  third  person  to  become  a  defendant  in 
his  stead.2  The  nature  of  the  allegations,  therefore,  in  every 
bill  of  interpleader  are :  first,  that  two  or  more  persons  have 
preferred  claims  against  the  complainant;  second,  that  they 
claim  the  same  thing ;  third,  that  complainant  has  no  beneficial 
interest  in  the  thing  claimed  ;  and  fourth,  that  he  cannot  de- 
termine without  hazard  to  himself  to  which  of  the  claimants 
the  thing  of  right  belongs.^  A  bill  of  interpleader,  strictly  so- 
called,  is  where  the  complainant  claims  no  relief  against  either 
of  the  defendants,  but  only  asks  that  he  may  be  at  liberty  to 
pay  the  money  or  deliver  the  property  to  the  one  to  whom  it  of 
right  belongs,  and  may  thereafter  be  protectee!  from  the  claims 
of  both.-*  A  bill  in  the  nature  of  a  bill  of  interpleader  differs 
from  a  bill  of  interpleader  in  this  ;  in  the  former  the  complain- 
ant seeks  not  only  to  have  the  conflicting  claims  of  the  defend- 
ants against  himself,  which  he  desires  to  discharge  to  the 
proper  parties  adjudicated,  but  also  some  affirmative  relief:  in 


325  IN-TEBPLEADER.  ^113 

the  latter  he  simply  asks  that  he  may  be  allowed  to  pay  money 
or  deliver  property  to  the  party  to  whom  it  of  right  belongs, 
and  that  thereafter  he  may  be  j)rotected  against  the  claims  of 
both.3  The  provision  of  the  Code  (New  York)  for  interpleader 
by  order  is  a  substitute  for  the  old  action  of  interpleader,  and 
is  governed  by  the  same  principles.''  The  remedy  given  by 
section  forty-three  of  the  Civil  Code  (Kansas)  does  not  snp:-r- 
sede  the  action  of  interpleader ;  but  in  cases  where  such  remedy 
might  be  substituted  for  the  action  of  interpleader,  the  reme- 
dies are  concurrent."  The  object  of  a  bill  of  interpleader  is  to 
protect  the  complainant  where  he  stands  in  the  situation  of  a 
stakeholder,  not  knowing  to  whom  to  pay  the  money  or  deliver 
the  property  in  his  hands ;  and  where  a  recovery  against  him 
at  the  suit  of  one  party  might  not  be  a  protection  against  the 
claim  made  by  the  other.^  The  only  excuse  for  filing  it  is  to 
guard  against  known  and  not  against  unknown  cLiinis.'-'  The 
complainant  should  state  his  own  rights  and  thereby  negative 
any  interest  in  the  thing  in  controversy ;  and  he  should  set 
forth  the  several  claims  of  the  opposing  parties. ^*^ 

1  Rapalje  &  Lawrence  Law  Diet,  title  luterpleader. 

2  Bouvier  Law  Diet,  title  Interpleader. 

3  Atkinson  v.  Mauks,  1  Cowen,  703. 

4  Bedell  v.  Hoflfman,  2  Paige,  200  ;  Heath  v.  Hurless,  73  111.  327. 

5  Heath  v.  Hurless,  73  111.  327. 

6  Pustet  V.  Flannelly,  60  How.  Pr.  60. 

7  Board  of  Education  r.  Scdville,  13  Kan.  29. 
S    Badeau  v.  Rogers,  2  Paige,  210. 

9    M.  &.  O.  Plaster  Co.  v.  White,  44  :Mich,  29. 
10    INIcEwen  v.  Troost,  1  Sneed,  193. 

j/  113.    When  a  bill  of  intsrpleadsr  may  bs  maintained. — 

A  bill  of  interpleader  lies  only  when  two  or  more  per^ons 
claim  the  same  debt  or  duty  from  complainant  by  different  or 
separate  interests,^  and  he  has  no  beneficial  interest  in  the 
thing  claimed. 2  The  complainant  must  occupy  the  position  oi 
a  mere  naked  trustee  of  property,  which  he  is  willing  to  deliver 
to  the  rightful  owner;  but  since  there  are  severixl  claimants 
thereto,  and  he  is  not  willing  to  decide  who  has  the  better 
right,  he  proposes  to  devolve  that  responsibility  upon  the 
Paktiks  — 23 


g   113  INTERPLEADEE.  326 

court.-^  To  maintain  the  bill  complainant  must  sliow  thai 
there  are  several  claimants  to  the  fund  or  property;  that  he 
has  no  interest  therein  save  as  a  naked  trustee  or  stakeholder ; 
that  he  cannot  determine  the  rights  between  the  conflicting 
claimants  without  hazard  to  himself.*  The  bill  will  lie  when- 
ever it  is  a  matter  of  doubt  to  which  of  the  defendants  the 
fund  in  complainant's  hands  belong.^  If  he  entertain  any  fear 
that  he  would  pay  the  fund  to  the  wrong  party  he  should  file 
the  bill.^  So,  also,  it  is  proper,  although  the  party  be  not 
actually  sued,  or  is  sued  by  one  only  of  the  conflicting  claim- 
ants, or  though  the  claim  of  one  be  legal  and  another  be  equit- 
able in  its  nature.^  There  should  be  attached  to  the  bill  an 
affidavit  on  the  part  of  complainant,  denying  that  collusion 
exists  between  the  parties  thereto,^  and  usually  the  property  or 
fund  should  be  brought  into  court.'*  When  a  legatee  is  not 
described  with  exact  accuracy,  and  the  description  may  in  some 
respects  be  applicable  to  different  persons,  each  of  whom  claims 
the  legacy,  a  bill  of  interpleader  may  be  maintained  by  the 
executor. I''  The  bill  can  only  be  maintained  by  one  in  posses- 
sion, and  therefore  when  an  administrator  had  not  reduced  the 
property  of  the  estate  to  his  possession,  it  was  held  that  he 
could  not  compel  distributees  who  claimed  adversely  to  him 
to  interplead  and  litigate  their  rights ;  ^^  so  when  from  the 
bill  itself  it  appears  that  one  of  the  defendants  is  clearly 
entitled  to  the  debt  or  duty  claimed,  to  the  exclusion  of  the 
other,  interpleader  is  improper  ;^2  and  so,  also,  the  bill  cannot 
be  maintained  if  complainant  claims  an  interest  in  the  fund  in 
dispute. 1"*  When  a  bill  is  filed  praying  for  instructions  as  to 
the  administration  of  a  trust  created  by  will,  the  fact  that  a 
part  of  the  will  is  not  set  forth  will  not  render  the  bill  liable 
to  demurrer,  provided  the  portion  omitted  does  not  of  neces- 
sity affect  the  question  to  be  determined.^*  When  a  bill  shows 
affirmatively  that  neither  of  the  defendants  is  entitled  to  the 
property  or  fund  claimed,  a  demurrer  by  one  that  will  virtually 
decide  the  cause  as  to  both  will  be  sustained. ^^  The  plaintiff 
should  show  that  each  of  the  defendants  claims  such  a  right  as 
they  may  interplead  for,  otherwise  demurrer  is  proper.  ^'^    When 


327  I>-TERPLEADER.  ?   114 

interpleader  is  the  proper  remedy,  it  should  be  brought  before 
one  of  the  claimants  has  recovered  judgment  therefor. '^  A 
judgment  debtor  who  has  been  garnirfheed  under  attachment 
issued  against  property'  of  the  judgment  creditor  may,  in  a 
proper  case,  maintain  a  bill  of  inteapleader.^^ 

1  Hayes  r.  Johnson,  4  Ala.  269. 

2  Cadey  v.  Potter,  55  Barb.  4(«  ;  Lincoln  v.  R.  &  B.  Rv.  Co.  24  Vt 
640. 

3  Snodgrass  v.  Butler,  54  Miss.  49 ;  and  see  Cullen  r.  Dawson,  24 
Minn.  72  ;  Leddel's  Execr.  v.  Starr,  20  X.  J.  Eq.  280. 

4  Farley  r.  Blood,  30  X.  H.  360  ;  Strange  v.  Bell,  11  Ga.  lOfi  ;  O.  W. 
V.  Co.  V.  Larcombe,  14  Xev.  53 ;  Cogswell  v.  Armstrong,  77  III.  141. 

5  Bell  r.  Hunt,  3  Barb.  Ch.  394  ;  Parker  v.  Barker,  42  X.  H.  93. 

6  StUlwell  V.  Commercial  Ins.  Co.  2  Mo.  App.  31. 

7  Strange  v.  Bell,  11  Ga.  106  ;  and  see  Dreyer  v.  Ranch,  42  How. 
Pr.  27;  Stewart  r.  Smith,  1  Phila.  42;  Richards  r.  Salter,  6  Johns. 
Ch.  447 ;  Gibson  v.  Goldthwaite,  7  Ala.  288  ;  Burton  v.  Black,  32  Ga.  59  ; 
Oil  Run  Pet.  Co.  v.  Gale,  6  W.  Va.  537. 

8  Shaw  V.  Chester,  2  Edw.  Ch.  405 ;  and  see  Beck  v.  Stephani,  9 
How.  Pr.  ir,6  ;  Burton  v.  Black,  32  Ga.  50  ;  Wehle  v.  Bowery  Sav.  Bk. 
8  Jones  &  S.  98  ;  Starling  v.  Brown,  7  Bush,  165. 

9  Shaw  T. 'Chester,  2  Edw.  Ch.  405;  Vosburgh  v.  Huntington,  IS 
Abb.  Pr.  256  ;  and  seeM.  &  H.  Ry.  Co.  v.  Clute,  4  Paige,  391. 

10  Morse  v.  Stearns,  131  Mass.  3S9  ;  generally  First  Presby.  Ch 
First  Presbj'.  Soc.  25  Ohio  St.  132  ;  Chandler  r.  Dodsou,  52  Mo."  129 

11  3rartin  v.  Mayberry,  1  Dev.  Eq.  171. 

12  M.  &  H.  Ry.  Co.  v.  Clute,  4  Paige,  392  ;  and  see  Conner  v  .Weber, 
12  Hun,  5^0. 

13  Wakeman  r.  Dickey,  19  Abb.  Pr.  27  ;  and  see  Brennan  r.  L.  \V. 
&  L.  &  G.  Ins.  Co.  12  Hun,  63  ;  Long  v.  Barker,  8o  111.  434. 

14  Putnam  i\  Collamore,  109  Mass.  512. 

15  Barker  v.  Swain,  4  Jones  Eq.  222  ;  and  see  Starling  r.  Brown,  7 
Bush,  166. 

16  Starling  v.  Brown,  7  Bush,  166. 

17  Brown  v.  "Wilson,  56  Ga.  536  ;  Moore  v.  Hill.  59  Ga.  762 ;  and  see 
Prov.  Inst,  for  Savings  i'.  White,  115  Mass.  112;  Perkins  v.  Guy,  2 
Mont.  17  ;  Pennypacker's  Appeal,  57  Pa.  St.  118. 

IS  Webster  v.  McDaniel,  2  Del.  Ch.  297  ;  see  Pennypacker's  Appeal, 
57  Pa.  St.  lis  ;  Perkins  v.  Guy,  2  Mont.  17. 

I  114.  "Who  may  file  a  bill  of  interpleader.  — When  two 
or  more  persons  claim  the  same  thing  by  separate  and  different 
interests,  and  another  person  not  knowing  to  which  of  the 
claimants  he  ought  of  right  to  render  a  debt  or  duty,  or  to 
dehver  property  in  his  custody,  fears  he  may  be  hurt  by  some 
of  them,  he  may  file  a  bill  of  intei-pleader  against  them.^    He 


^114  INTERPLEADER.  328 

may  file  the  bill  although  lie  be  not  actually  sued,  and  although 
cue  of  the  claims  is  legal  and  the  other  of  au  equitable  nature.^ 
A  mere  volunteer  who  by  his  own  wrong  has  interfered,  against 
one  claimant  for  the  benefit  of  another,  is  not  entitled  to  main- 
tain the  bill.=*  When  the  interest  of  a  person  is  liable  to  be 
affected  by  a  suit  in  chancery  it  is  his  right  to  make  himself  a 
party  by  petition  in  the  nature  of  a  bill  of  interpleader.*  To 
maintain  interpleader  it  must  appear  that  plaintiff  is  ignorant  of 
the  rights  of  the  respective  claimants  ;  it  is  only  allowed  to  those 
who.are  in  danger  of  suffering  loss  by  reason  of  inability  to  de- 
termine to  whom  the  money  or  property  belongs, ^  When  a  bank 
or  other  agent  holds  money  or  other  funds  upon  deposit,  and  a 
honafide  doubt  is  created  as  to  which  of  several  claimants  it  right- 
fully belongs,  a  bill  of  interpleader  may  be  maintained  by  the 
depository,  as  where  the  elcpositor,  a  public  officer,  upon  re- 
moval from  office,  claims  the  fund  as  his  private  fund  and  prop- 
erty.'' When  a  stockholder  of  an  insolvent  corporation  allowed 
judgments  to  be  taken  against  himself,  in  excess  of  his  liability, 
he  is  not  entitled  to  a  bill  of  interpleaeler  to  compel  the  judgment 
creditors  to  litigate  their  rights  thereto.'  When  the  mtTlcer  of 
a  note  stanels  ready  to  pay  it  but  is  ignorant  of  the  rights  of  the 
payee  and  an  alleged  assignee  in  bankruptcy  of  the  latter,  who 
claims  the  amount,  he  may  maintain  a  bill  of  interpleader  to 
determine  to  whom  the  fund  properly  belongs.^  The  right  to 
maintain  the  bill  must  be  exercised  before  the  claimants 
have  recovered  judgments  upon  their  several  claims.^  A 
bill  cannot  be  maintained  by  a  tax  payer  to  determine  in 
wdiich  of  two  towns  he  is  liable  to  be  taxed. i"  So  a  bill  cannot 
be  maintained  by  a  trustee  under  a  will  for  instructions  in 
the  nature  of  a  bill  of  interpleader,  upon  questions  relating 
to  past  administration  of  the  trust.^^  But  whenever  a  trustee 
doubts  as  to  his  safety  in  complying  with  any  demand  of  a 
cestui  que  trust,  or  doubts  as  to  any  other  matter  arising  in  the 
execution  of  the  trust,  his  only  safe  and  prudent  course  is  to 
wait  for  the  direction  of  a  court  of  equity. ^^  i^  ^  bill  of  inter- 
pleader the  plaintiff  must  always  admit  a  title  as  against  him- 
self in  all  the  defendants  ;  therefore  he  cannot  maintain  a  bill 


329  IXTEKPLEADER.  ?   115 

in  which  he  is  obliged  to  state  that  as  to  some  of  the  defendants 
he  is  a  wrong-doer.^-*  When  a  lessee  is  sued  for  rent  hy  a  per- 
son other  than  his  lessor,  and  fears  liability  to  double  payment, 
he  should  file  his  bill  of  interpleader.^* 

1  Stranere  r.  Bell,  11  Ga.  106  :  Oppenheim  v.  Wolf,  3  Sand.  Ch.  571  ; 
Dows  V.  Kidder,  84  N.  Y.  VU  ;  Presbyterian  Hoc.  ?•.  Staples.  23  Conn. 
5.54  ;  s?e  Russell  »-.  Church,  65  Pa.  St.  14  ;  Fowler  v.  Williams,  20  Ark. 
647  ;  Winfield  v.  Bacon,  24  Barb.  162. 

2  Strange  v.  Bell,  11  Ga.  106  ;  see  Coates  v.  Koberts,  4  Rawle,  109. 

3  U.  S.  V.  Victor,  10  Abb.  Pr.  158. 

4  :Morriss  v.  Barclay,  2  Marsh.  J.  J.  378  ;  and  see  Divers  v.  Mark,  3 
Mo.  81. 

5  Trigg  V.  Hitz,  17  Abb.  Pr.  439  ;  see  Johnson  i'.  Lewis,  4  Abb.  Pr. 
^s".  S.  151 ;  Cheever  v.  Hodgson,  9  Mo.  App.  568. 

6  German  Exchange  Bank  ?•.  Commrs.  57  How.  Pr.  187  ;  compare 
I'.  S.  Trust  Co.?'.  Wiley,  41  Barb.  477  ;  M"Gaw  r.  Adams,  14  How.  Pr. 
462;  Cadey  r.  Potter.  55  Barb.  463 ;  Vosburgh  r.  Huntington,  15  Abb. 
Pr.  256. 

7  Cheever  v.  Hodgson,  9  Mo.  App.  538  ;  generally  Holmes  r. 
Clark,  46  Vt.  25. 

8  Howe  Sow.  Machine  Co.  v.  Gilford,  66  Barb.  o\)S. 

9  McKinney  v.  Kahn,  59  Miss.  187  ;  and  .see  Holmes  v.  Clark,  46 
Vt.  25. 

10  Macv  V.  Xantucket,  121  Mass.  '.icl  ;  and  see  Dorn  r.  Fox,  6  Lans. 
162. 

11  Sohier  v.  Burr,  127  Mass.  222;  and  see  Proctor  v.  Heyer,  122 
Mass.  528. 

12  Dimmock  r.  Bixby,  20  Pick.  374. 

13  Quinn  r.  Green,  1  Ired.  Eq.  22D. 

14  McCoy V.  Bateman,  8  Xev.  128  ;  Vernam  r.Smith,  15  :>*.  Y.  .328. 

§  115.  Ili9  effect  of  interpleader.  —  On  a  bill  of  inter- 
pleader there  should  regularly  be  a  decree  that  the  defendants 
interplead,  and  the  case  then  becomes  a  case  between  the 
defendants  as  between  a  plaintiff  and  defendant.^  TThen  this 
decree  has  been  entered  the  complainant  is  ousted  from  tho 
suit,  which  proceeds  without  his  aid  or  interference.-  When 
the  claimants  to  the  fund  consent  to  intcrpleal,  and  a  decree 
is  properly  entered,  the  court  having  the  fund  under  its  con- 
trol may,  at  the  final  hearing,  shape  its  decree  and  distribute 
the  fund  so  as  to  do  complete  equity  between  the  parties." 
When  a  bill  for  an  interpleader  is  filed  no  relief  can  be  granted 
until  the  time  for  answering  has  expired  ;  until  then  the  defend- 
ants mav  come  in  and  answer  or  demur,  and  the  issues  thus 


^115  IXTERPLEADEK.  330 

raised  are  disposed  of  as  are  other  issues.*  A  court  of  chancery 
will  not  actively  interfere  to  dispose  of  a  fund,  except  in  favor 
of  one  who  appears  either  from  proof  taken  or  from  a  pro  con- 
fesso  judgment  suffei'ed,  to  be  best  entitled.^  The  parties 
defendant  to  a  bill  for  interpleader  stand  before  the  court  to 
litigate  the  questions  of  right  pending  between  them,  to  the 
same  extent  as  if  one  had  brought  a  bill  against  the  other, 
predicated  upon  the  same  matter  and  for  the  same  purpose; 
they  may,  therefore,  settle  the  matter  of  controversy  between 
themscdves  without  regard  to  the  complainant ;  ^  and  so  when 
one  defendant  is  defaulted  the  complainant  has  no  right  to  dis- 
pute the  claim  of  the  other  defendant  to  the  fund,  nor  to  object 
to  a  decree  ia  his  favor  J  When  one  defendant  claimed  that  a 
larger  sum  was  due  from  the  complainant  than  the  amount 
paid  into  court,  he  was  properly  allowed  to  allege  that  fact  by 
way  of  a  cross-bill.^  "When  the  bill  has  been  properly  filed, 
and  the  plaintiff  has  acted  in  good  faith,  as  a  rule  he  is  entitled 
to  his  costs,  which  ultimately  must  be  paid  by  the  unsuccessful 
party.**  "When  the  individual  rights  of  a  complainant  aro 
affected  by  the  decree  he  may  appeal.^" 

1  Rowe  V.  Adms.  of  Hoagland,  7  X.  J.  Eq.  139  ;  St.  L.  L.  Ins.  Co.  v. 
A.  M.  L.  Ins.  Co.  23  Minn.  9. 

2  St.  L.  L.  Ins.  Co.  v.  A.  M.  L.  Ins.  Co.  23  Minn.  9  ;  Perkins  v.  Lit- 
tlefield.  40  Ga.  227  ;  and  see  Cogswell  v.  Armstrong,  77  111.  141 ;  First 
Nat.  Bank  v.  W.  R.  Ry.  Co.  46  Vt.  641 ;  George  v.  Pilcher,  28  Gratt. 
300. 

3  Whitnev  v.  Cowan,  55  Miss.  640  ;  and  see  Richards  v.  Salter,  6 
Johns.  Ch.  445. 

4  Wash'n  Life  Ins.  Co.  v.  Lawrence,  28  How\  Pr.  435. 

5  Pillow  V.  Aldridge,  4  Humph.  287  ;  and  see  Richards  v.  Salter,  6 
Johns.  Ch.  445  ;  Cogswell  v.  Armstrong,  77  111.  141. 

6  Horton  Exr.  v.  Baptist  Ch.  34  Vt.  312  ;  and  see  First  Nut.  Bank  v. 
W.  R.  Ry.  Co.  46  Vt.  641. 

7  Cogswell  V.  Armstrong,  77  111.  141. 

8  Owen  v.  Apel,  68  111.  393. 

9  Sjirings  7-.  S.  C.  Ins.  Co.  8  Wheat.  282  ;  generallv  Richards  v.  Sal- 
ter, 6  Johns.  Ch.  445  ;  St.  Louis  L.  Ins.  Co.  v.  Ins.  Co.  23  Minn.  9  ;  Beers 
V.  Spooner,  9  Leigh,  156 ;  Tupper  v.  Cassell,  45  Miss.  353 ;  Farley  v. 
Blood,  30  N.  H.  3(>0. 

10    Cooper  v.  Jones,  24  Ga.  475. 


IXDEX. 


IXDEX. 

{Tue figures  refer  to  sections  and  fmhdivisions  thereof.) 


Abandoned  and  captured  property  act,  right  of  alien  to  sue 

uiuler.  2J.  ^. 
Abatement.     See  SuE^^VAL  of  Actions. 
etil-et  of,  at  common  law,  105,  ^ 
effect  of.  in  equity,  105,  ^. 
revival  of  suit  in  equity  after,  effect,  105,  ^. 
meaning  of  words  "after  issue  joined"  in  act  to  prevent, 

105,  ». 
filing  j)lea  of,  amounts  to  appearance.  14.  <>. 
answer  in  nature  of,  plea  in,  effect.  102,  '^. 
plea  in,  person  civilly  dead,  disability,  29,  '^*^. 
plea  in,  person  alien'enemy,  disability.  29,  ^". 
jDlea  in,  person  Indian,  disability,  29,'-^. 
dissolution  of  cnr2:)Oi'ation,  matter  of,  91,  ^-. 
action  brought  in  name  of  firm,  88,  ^ 
non-joinder  of  partners  as  defendants,  matter  of,  89,  ',  et 

seq. 
coverture,  disability  of,  matter  of,  63,  ^. 
Action  hij  husband  and  icife,  when  death  of  latter  caused, 

G3,  i«. 
for  tort,  when  death  of  latter  caused,  65,  i^. 
for  tort,  when  death  of  latter  does  not  cause.  107.  -^ 
death  of  latter  pending  writ  of  error,  effect.  108,  ^'. 
death  of  former  pending  appeal,  effect  in,  to't,  09,  '^^ 
death  of  plaintiff' pending  action,  effect.  71,  ^^. 
death  of  solo  defendant  (statute),  107,  '^^. 
death  of  defendant  in  trover,  caused,  107,  -'-. 
death  of  defendant,  breach  of  promise  of  mari-iage,  effect. 

107,  •^«. 
death  of  nominal  plaintiff,  effect,  107.  '^. 
death  of  co-plaiutiff' or  co-defendant  in  equitv.  effect,  107.  '" 
death  of  trustee  (plaintlft"),  effect,  32.  -=*. 
death  of  petitioner  in  mandamus  causes,  108.  '•*. 
marriage  of  feme  sole  plaintiff,  causes,  107.  ^',  et  seq. 
name  of  guardian,  insane,  omitted,  eft'eet,  Gl,  i^'. 
name  of  party  spelled  wrong,  effect,  3,  ^- 


INDEX.  334 

Abatament —  Continued. 

plaintiff  transfers  interest  (Code),  effect,  g  106,  5. 
plaintiff  transfers  interest  in  equity  causes,  106,  S  107,  ^^. 
public  officer,  action  by,  term  of  ex^Dires,  effect,  47,  •',  50,  ^. 
public  officer,  action  by,  death  or  removal  of,  effect,  107,  '^''. 
relator,  death  of,  action  on  official  bond,  causes,  39,  ^^. 
suit  for  lands  by  tenant  for  life,  death  of,  effect,  107.  ^*^. 
death  of  lessor  of  plaintiff' in  ejectment,  effect,  107,  ^^. 
death  of  sole  tenant  in  writ  of  right,  effect,  107,  ^^. 
trespass  quare  clausimi  fregit,  death  of  co-pkintiff  or  co- 
defendant,  effuct,  107,  '-^K 
replevin,  death  of  party,  effect,  107,  ^',  ei  si^q. 
plaintiffs  non-joinder.' actions  on  contract,  objection,  how 

raised,  100,  i*,  102,  ^". 
defendant's  non-joinder,  actions  on  contracts,  objection, 

how  raised,  100.  "^^  101,  ^. 
non-joinder,  when  objection  by  fatal,  103,  ^i,  et  seq. 
plaintiffs  non-joinder  of  co-executors,  effect,  71,  ^^. 
plaintift"'s  non-joinder  of,  in  tort,  objection  how  raised,  100, 

11,  et  seq. 
divorce,  death  of  party  after  appeal,  effect,  108,  ii. 
plaintiff",  death  of  after  appeal,  action  for  tort,  effect,  108,  ^2. 
of  actions,  construction  of  statute  to  prevent  (Md.)  107,  '■^'^. 
statute  in  relation  to,  nature  of,  105,  i**,  et  seq. 
second  plea  not  allowed,  100,  ~^. 
Absentee.    See  Xon-eesident. 

who  is,  rule  in  Louisiana,  29,  ''^^. 
Acceptor  of  bill  of  exchange  jpayable  to  drawer,  holder  may 

sue,  35,  '^'^. 
Account,  bill  for,  wdio  necessary  parties,  to  24,  i. 

w^ho  necessary  parties  in  suit  to  reach  funds  in  hands  of 

third  person,  24,  ''. 
when  court  of  equity  will  not  pass  upon  merits,  9,  •^-. 
death  of  joint  defendant  in  effect,  105.  ^. 
against  common  agent,  necessary  parties,  24,  ^. 
assignors  of  equitable  chose  not 'necessary  parties  to,  24,  ^. 
by  stockholders  of  corporation,  when  dire'ctoi-s  must,  91,  ^^. 
against  guardian  by  ward,  necessary  parties,  21,  ^,  et  seq., 

24,  ',  et  seq. 
against  guardian,  infant,  how  sues,  57,  ^^,  et  seq. 
person  to  receive  share  of  profits  for  services  may  maintain, 

31,  1'. 
against  partnership,  necessary  parties,  24,  ^,  et  seq. 
by  i:»artner  necessary  parties,  25,  ^. 
by  partner,  member  of  two  firms,  88,  ^'^. 
of  partnership  affairs,  when  heir  of  deceased  partner  not 

necessary,  25,  ^^. 
trustee  liable  to  trustor,  33.  ^^. 


Account,  bill  for  —  Contiwied. 

trustee  liable  to  ce:itui,  ^  33,  ^'. 

trustee  for  benefit  of  creditors  liable  to  final.  33,  ^'^  et  seq, 

against  trustee,  ci'editors  payable  in  classes,  nect8.>arv  par- 
ties, 23,  "^u. 

by  creditors,  of  trust  funds,  necessary  parties,  23,  -^. 

against  administrator  of  deceased  trustee,  necessai-%-  parties, 
23,  •''». 

against  executor  of  deceased  trustee,  appointment  of  new, 
necessaiy  parties,  23,  ^. 

debtor  not  liable  to  separate  suits  upon  at  same  time,  34,  ". 

given   as  collateral  security,  who  not  necessary  party  to 
action  upon,  24,  ^'^. 

suit  on  administrator's  bond  for  failure  to  file,  defense,  75. 

until  settlement,  partner  may  not  sue  co-partner,  88,  ^*. 
Action,  to  recover  assets,  estate 'of  decedent,  who  may  prose- 
cute, 22,  ^,  et  seq. 

none  in  favor  of  administrator  against  the  estate,  77. 

administrator  against  none  until  claim  presented,  15. 

administrator  against,  prematurely  brought,  how  taken  ad- 
vantage of,  75. 

administrator  against,  joint  against,  death  of  one,  effect,  75. 

administrator  against,  when  not  necessary,  74. 

administrator  against,  pendente  lite  for  services.  75. 

administrator  against,  in  individual  capacity,  74. 

administrator  against,  pleadings,  amendment  of,  extent,  74. 

administrator  a-rainst,  what  claims  joined,  75. 

administrator  against,  when  commenced,  75. 

administrator  against,  former,  when  administrator  de  bonis 
non  may  bring,  77. 

administrator  against,  when  against  in  official  capacity-,  74. 

on  administrator's  bond,  what  is  breach  of,  75. 

on  administrator's  bond,  who  may  sue  for  devastavit,  75. 

administrator  for  devastavit,  who' not  parties  to,  75. 

administrator  foreign,  when  lies  against,  74. 

alien,  when  may  maintain,  29,  ^,  et  seq. 

alien  against,  in  State  court  removed  to  federal  court,  29,  ^^. 

ambassador  foreign,  may  maintain.  29,  2. 

appearance  general  to,  what  is,  14,  ^  et  seq. 

bailor  and  bailee,  generally  by  and  against.  87. 

capacities,  may  be  against  person  in  several  difterent,  4,  '". 

on  the  case,  Code,  what  are,  9,  ■*. 

two  causes  of,  united  in  same  complaint,  9,  ^. 

two  causes  of,  united  in  same  complaint,  when,  103,  ^. 

cause  in  favor  of  each  or  either  of  two  persons,  joint, 
improp'.-r,  102,  -. 

common  law.  abatement,  eftect.  105,  ^ 

court,  improperly  removed,  appearance,  effect  of,  IG,  '-. 


INDEX.  33G 

Action—  Coniimied. 

upon  contract,  brought  in  wkose  name,  §  31,  ^  et  seq. 

upon  contract,  who  may  maintain,  'A2,  '^,  et  seq. 

upon  contract,  for  benefit  of  third  person,  who  mav  main- 
tain, 37,  J,  94,  •*,  et  seq. 

upon  contract,  non-joinder  of  defendant,  objection  how 
raised  at  common  law,  100,  -^. 

for  breach  of  parol  contract  for  sale  of  land  passes  to  exe- 
cutor, 107,  ^. 

by  a  corporation,  generally,  90. 

by  a  corporation,  name  changed  pending,  waived.  3,  '^^. 

ill  favor  of  insurance  company,  negligence  of  third  person, 
when  right  accrues,  38,  ^^. 

when  foreign  corporation  may  maintain,  80,  ^. 

against  a  corporation,  genei'ally,  91. 

against  a  corporation,  form  of,  91,  ^i. 

against  a  county,  how  brought,  42,  i,  et  seq. 

again 'it  acounty,  no  manner  pointed  out  by  statute,  remedy, 
42,  2. 

against  a  new  county  when  lies  in  favor  of  old,  42,  '. 

for  damages  for  causing  death  of  person  in  another  State, 
72,  «. 

upon  split  demand,  who  may  sue,  31,  ^^,  et  seq. 

as  rule  not  dismissed  upon  opening  statement  of  criunstl, 
8,  1^ 

when  must  not  be  dismissed  without  trial,  102,  '^. 

mav  be  dismissed  against  resident  and  proceed  against  non- 
resident, 10,  ^». 

ejectment  plaintiff  must  have  title  to  support,  9.  •^-. 

to  recover  possession  of  leased  premises,  death  of  plaintiff, 
effect,  79,  i". 

for  foreclosure,  when  purchaser  pending  made  party  to,  5, 
^,  et  seq. 

for  forclosure  by  junior  lien  holder,  when  elder  may  be 
made  party  to,' 5,  ^. 

by  or  against  heirs,  devisees,  or  legatees,  78. 

for  destruction  of  title  eleeds,  heir  party  to,  78,  '^^. 

for  preservation  of  legacy,  when  legatee  may  maintain 
before  payable.  78,  ^'^. 

separate  by  legatees  to  recover  his  share  of  one  collecteel 
uneler  joint  power  of  attorney.  78,  ^^. 

as  rule  will  not  lie  against  heir'in  first  instance,  75. 

when  heir  may  defend,  75. 

when  husband  and  wife  join,  G3,  K 

when  husband  sues  alone,  63,  '■^. 

by  husband  and  wife  upon  contract,  when  proper,  63,  S 
et  seq. 

by  husband  and  wife,  debt  due  latter,  effect  of  her  death, 
63,  18,  et  seq. 


337  i^'^EX. 

Action  —  Continued. 

husband  has  for  enticing  away  wife,  §  65,  ^. 

by  husband  for  enticing  away  wife  when  no  recovery,  G5, 

2*5,  et  seq. 
two  at  common  law  for  injury  to  wife,  65,  '',  et  seq. 
two  for  slander  to  husband  and  wife,  65,  ^". 
wiie  has  none  for  enticing  away  husband,  65,  22. 
wife  has  none  as  nile  at  law  against  husband,  67,  ^. 
none  at  common  law  by  infant  against  guardian,  57,  ^^,  d 

seq. 
to  enforce  right  of  infant  should  be  in  his  name,  56,  ^  et  spq. 
by  infant  in  own  name  alone,  irregularity  cured  by  verdict, 

'57,  ^  et  seq. 
none  in  forma  pauperis  for  infant  by  next  friend,  56,  "^,  ct 

seq. 
who  may  maintain  for  service  rendered  by  minor,  83,  ^ 
upon  instrument,  when  interest  must  be  shown,  31,  ^-. 
a  person  must  have  an  interest  in  the  matter  in  controversy 

to  maintain,  30,  •*,  et  seq. 
what  interest  sufldcient,  31,  ^^,  ct  seq. 
bare  possibility  not  sufficient,  31,  ^i. 

of  detinue,  what  title  plaintiff  must  have  to  maintain,  81,  -'. 
general  rule  must  be   in  name  of  real  partv  in  interest, 

31,  K 
"prosecuted"  in  name  of  real  party  in  interest  meaning  of 

term,  31,  ^ 
at  law,  bill  to  enjoin,  necessary  parties,  28,  *^. 
when  iatervenor  may  not  come  in  and  prosecute,  109,  ^^. 
intervenor  must  take  as  he  finds  it,  111,  ■*. 
must  not  delay,  111,  ^. 
may  not  object  to  form  of,  111,  ^. 
when  intervention  proper,  110,  ^. 
at  what  stage,  107,  «. 
when  takes  place  in,  108,  *. 
only  takes  place  in  civil,  109,  1^. 
when  dismissed,  109,  i'. 
relating  to  land  of  decedent,  73. 
to  set  aside  tax  sale  of  lands  cf  intestate,  78,  '^. 
who  may  maintain  for  injury  to  leased  premises,  79,  ^\  ". 
injurv  resulting  from  act  made  misdemeanor  by  statute  is 

the" subject  of,  38,  21. 
who  may  maintain  for  breach  of  covenant  to  pay  mortgage 

after  death  of  covenantee,  78,  -^. 
upon  mortgage  to  several  persons  to  secure  several  debts, 

how  brought,  82,  ^",  et  seq. 
name  of  party  to  civil,  set  out  in  record,  3,  ^ 
by  non-resident,  no  security  for  costs,  effect,  8,  ^^. 
by  one  partner  for  injury  to  firm  property,  recovery,  88,  '*•'. 
Part  IKS  — "2  J 


INDEX.  338 

Action —  Continued. 

partner  may  confess  judgment  in,  pending,  ^  £9,  '^K 

against  partners  generally,  89. 

by  partnership,  in  Avbose^iame  broiiglit,  88,  ^,  et  seq. 

•who  are  parties  to  an,  1,  i,  et  .-ieq. 

Code,  does  not  abate  by  reason  of  death  or  other  disability 

of  a  party,  106,  «. 
personal  representatives    not  bound  until  brought    into 

court,  106,  1". 
when  new  party  not  bound  by,  104,  ^. 

pending,  extent  of  substitution  of  parties  to,  106,  ^^  et  seq, 
personal  as  a  rule  do  not  survive,  107,  ^j,  et  seq. 
for  personal  injury  resulting  from  negligence  does  not  sur- 
vive, 107,  23. 
personal,  where  enforced,  9,  ^^ 
death  of  plaintiff  before  commencement  of,   how  taken 

advantage  of,  107,  ^ 
nominal  plaintiff  has  what  control  over,  2,  ',  ct  seq. 
when  may  control  and  dismiss,  etc.,  2,  2. 
prosecuted  by  public  officer,  death  or  removal  from  office. 

effect,  107,  ^'. 
by  receiver  for  corporation,  when  authority  of  must  appear, 

90,  21. 
against  executor,  judgment,  77. 
brought  in  whose  name,  52,  ^,  et  seq. 
%Yhen  receiver  is  a  trespasser  how  may  be  sued,  52  ^-. 
extent  of  rule  made  against  receiver,  52,  ^^,  et  seq 
when  foreign  receiver  may  not  maintain,  52,  ^*'. 
death  of  relator  upon  official  bond,  effect,  39,  i-. 
for  rent,  when  may  bo  maintained,  79,  ^^. 
for  restitution  of  premises,  when  joint,  79,  ^'K 
revival  of,  effect,  107,  s^^. 
death  of  sole  defendant  when  action  will  not  be  revived, 

105,  11. 
for  specific  performance  of  contract  to  convey  lands,  when 

plaintiff  dies  who  revives,  78,  '■^^. 
one  of  several  appellants  dies  after  appeal  perfected,  v/ho 

may  revive,  108,  s. 
possessory,  who  revived  against,  76. 
against  sheriff  for  default  of  deputy,  Avhen  survives,  7G. 
no  joiut,  against  sheriff  and  predecessor,  51,  "". 
by  State,  form,  etc.,  39,  '■^. 

against  State,  none  without  consent,  40,  '',  et  seq. 
none  lies  for  lawful  act  done  upon  land  by  the  owner,  SO,  1. 
for  maliciously  burning  building  of  plaintiff,  amount  of 

recovery,  38,  1^. 
real,  death  of  defendant  in,  effect,  105,  *. 
how  tenants  in  common  should  sue,  82,  ^^  ci  seq. 


339  EfDEX. 

Action  —  Contimcea. 

t  J  remove  cloud  from  title,  when  remainder  man  mav  sue 

as  next  friend,  ^J  79,  ^\  i-^. 
joint,  none  for  slander,  95,  ^^. 
for  trespass  upon  crop,  when  tenant  may  maintain  against 

landlord,  79,  ^■°. 
joint,  when  proper  for  trespasses  of  cattle,  98,  ^  et  sen. 
when  widow  may  be  sued  as  tutrix,  74. 
effect  of  release  of  one  joint  wrong-doer,  98,  >". 
against  wrong-doer,  joinder  of  plaintiffs,  9"'.  ". 
Actors,  all  parties  to  suits  of  partition  are,  28,  i^,  82,  ^K 
Acts,  of  agent,  principal  liable  for  what,  85,  i,  et  seq. 
of  servant,  master  liable  for,  83,  ^^. 
of  servant,  when  master  not  liable  for,  83,  ^'. 
Administration,  when  closed  no  action  lies  in  favor  of  creditor, 

75. 
Administrator,  action  for  conversion,  survival  of  against,  76. 
wasting  assets,  who  may  apply  for  receiver,  75. 
subsequent  discovery  of  will,  effect,  71,  ''. 
deceased,  devastavit,*^  suit  against  suretv,  who  made  partv, 

22,  1^.  -  L      . 

representatives  and  sureties  of  cannot  be  joined  in  action 

for  devastavit  of  the  former  administrator,  75. 
devastavit,  extent  of  recovery  against  by  administrator  de 

bonis  non,  77. 
after  payment  of  debts,  trustee  for  next  of  kin,  77,  78,  '•'. 
duty  of,' with  relation  to  lauds  of  decedent,  78,  ^-. 
no  claim  against  heirs  for  commissions.  72,  '^'^. 
action  against  to  tiT  title  to  lands,  heirs  necessarv  parties, 

22,  11.  '  .  i  ' 

when  need  not  be  joined  with  heir  in  suit  against,  22,  -', 

C't  seq. 
infant  cannot  appoint,  5G,  i. 
when  may  not  compel  interpleader,  113,  n. 
when  attorney  may  not  intervene  in  suit  by,  110,  "**. 
when  not  liable  to  pay  judgment  against  the  estate,  72,  -'. 
when  not  personally  liable  for  money  collected,  75 
of  mortgagee,  party  to  foreclose  suit,  27,  *^. 
necessary  party  to  suit  for  account  of  personal  assets,  22, 

^1,  et  seq. 
vrhen  necessary  party  to  suit  to  reach  assets  devised,  22,  --^ 

et  seq. 
necessary  party  to  suit  to  recover  property  in  hands  of 

donee  of  decedent,  22,  ^%  et  seq. 
of  grantor,  when  not  necessary  party  to  suit  to  set  aside 

conveyance,  26,  ^^ 
when  necessary  party  to  judgment  debtor,  bill  to  reach 

property  in  liands  of  heir,  24,  -'*. 


INDEX.  340 

Administrator —  Continued. 

of  co-tenant  not.necessaryparty  to  suit  for  partition,  §  28,  ^'\ 
of  deceased  trustee  necessary  partie?,  suit  for  account,  23,  ^^. 
of  vendee  dying  pending  suit  to  set  aside  conveyance  need 

not  be  made  party,  26,  ^s. 
of  vendor,  necessary  parties  to  suit  to  enforce  contract  for 

sale  of  lands,  26,  i",  et  seq. 
of  vendor,  suit  by  to  enforce  lien  for  purchase  j)rice  of 

land,  heirs  of  vendor  made  parties,  27,  ^ 
■plea  of  fully  administered  found  in  favor  of,  effect,  77. 
none,  death    of  j)arty  after  apj^eal,  review  against  heirs, 

108,  ». 
death  of  pfaintiff  when  co-defendant  entitled  to  revive  suit 

in  own  name  as,  71,  2". 
■when  mav  revive  and  enforce  suit  alone  for  injury  to  wife, 

65,  ^K  ' 
when  mav  revive  suit  abated  by  death  of  wife   pending 

action,  63,  i«. 
possessory  action  revived  against,  76. 
settlement  of  necessarv  parties  to  bill  to  set  aside  on  ground 

of  fraud,  78,  i". 
substitution  of  party  on  death  of  j)laintiff  bv  ex  i>arte 

motion,  106,  2. 
substitution  as  plaintiff  when  too  late   for  defendant  to 

object,  106,  i«. 
of  defendant  cannot  apply  to  be  substituted  as  part^%  remedv, 

106,  ^1. 
when  not  substituted  to    rights    of  judgment    creditor. 

72,  '^, 
action  against  sheriff  for  default  of  deputy  whtii  si;rvivcs 

against,  76. 
time  when  may  be  sued  begins  when,  75. 
widow  sued  as  tutrix  should  be  made  ^^artj'  as  administra- 
trix when,  74. 
may  sue  co-administrator  for  debt  due  estate  when,  77. 
when  mav  recover  excess  paid  creditor  of  insolvent  estate, 

72,  23.  ' 
suit  bv  to  recover  over  advances  to  distributee,  necessarv 

party,  22,  2?. 
when  defendant  admits  right  to  sue.  71,  ^. 
when  right  to  sue  not  admitted,  71,  *^. 
when  may  maintain  ejectment,  73,  78,  -'^ 
cannot  sue  the  estate  at  law,  77. 
Avhen  should  sue  for  injui-y  to  estate,  72,  *^. 
when  his  individual  creditors  levy  on  goods  of  estate  may 

enjoin  sale,  72,  1^. 
on  death  of  plaintiff  after  judgment  may  sue  out  writ  of 
eiTor,  71,  21. 


341  INDEX. 

Administrator  —  Continued. 

when  may  maiutaiu  i)etition  for  forcible  entrv  and  detainer, 

I  73. 
■when  may  sue  heir  for  trespass  on  land,  73. 
land  taken  for  public  use,  may  sue  for  damages,  73. 
may  foreclose  mortgage  due  e'state,  73. 
when  may  file  bill  to  redeem  mortgaged  premises,  73. 
when  may  bring  suits  for  rent,  73. 
of  insolvent  estate,  when  may  enjoia  tenant  from  sul>let- 

ting  lands,  73. 
when  may  join  with  surviving  tenant  in  common  to  recover 

for  land  sold,  73. 
must  sue  for  tort  generally,  or  conversion  of  property  of 

decedent  in  his  lifetime,  78,  *. 
when  may  sue  for  tresspass  on  land,  73. 
when  maV  sue  to  enforce  trust  created  by  decedent,  73, 
may  enforce  vendor's  lien,  73. 

of  wife  may  sue  alone  for  injury  causing  her  death,  G5,  '^. 
and  heirs  sued  for  on  account,  when,  77. 
assault  and  battery  by  decedent,  action  lies  when,  7G. 
need  not  be  sued  alone  for  breach  of  bond,  75. 
after  payment  of  debts  liable  directly,  or  on  bond,  77. 
when  suit  against  in  individual  capacity,  pleading  may  be 

amended  how,  74. 
when  suit  against  in  official  capacity.  74. 
may  be  sued  for  debts  of  decedent, '75. 
is  proper  defendant  in  suit  to  enforce  claim  against  estate, 

22,  12. 
action  against,  none  until  claim  presented,  75. 
actions  against,  what  claims  joined,  75. 
who  joined  as  defendants  with  in  equitable  suit,  22,  '^*,  et  spq. 
duty  of  as  defendant,  75. 

whe'n  heir  may  maintain  ejectment  against,  76. 
when  heir  may  sue  for  rents  of  lands  collected,  73,  ^",  -i. 
bill  against  by  next  of  km  for  settlement  of  estate,  neces- 
sary parties,  22,  •**>. 
propt-rly  made  defendant  with  heirs  in  suits  to  enforce 

contract  to  convey  lands,  78,  2». 
action  against  prematurely  brought,  how  taken  advantage 

of,  75, 
Administrator  or  executor,  is  full  representative  of  creditors, 

71,  K 
holding  note  due  third  person  from  the  estate  and  refusing 

to  deliver  or  pay,  effect,  76. 
generally  actions  by,  71  and  72. 
must  bring  action  for  the  estate,  72.  ^ 
must  sue  for  damages  for  deatli  caused  by  negligence,  72.  '"'. 
may  maintain  suit  for  breach  of  contract  to  convey  lands,  73. 


INDEX.  3i2 

Administrator  or  Executor  —  Continued. 

when  should  bring  action  on  contract  in  representative 

capacity,  when  may  elect,  g  72.  ^-,  H  seq. 
may  sue  upon  judgment  in  individual  capacity,  72,  '^. 
suits  against,  generally,  li. 
actions  against  for  torts,  75. 

Avhen  decedent  dies  after  verdict  should  be  substituted  as 
party,  74. 
Administrator  de  bonis  non,  when  may  sue  former  adminis- 
trator, 77. 
extent    of    recovery    against    former    administrator,    for 

devastavit,  77. 
when  mav  recover  property  mis-appropriated  bv  executor, 

72,  ^^  " 
when  may  recover  from  creditor  amount  overpaid,  72.  '^* 
suit  by  to  subject  lands  sold  by  predecessor  to  payment  of 
the  purchase  money,  proper  parties,  2G,  ^". 
Administrator  joint,  death  of  one,  who  may  sue  on  bond,  77. 
one  refusing  to  be  made  plaintiff  maybe  made  defendant, 

G,  *,  et  seq. 
non-resident  not  joined  as  plaintiff,  71,  ^^ 
when  may  be  sued  for  debt  due  estate,  77. 
death  of,  when  suggested,  suit  for  devastavit  may  proceed 

against  survivor,  75. 
when  representative  of,  mav  be  sued  alone  for  distributive 
share,  77. 
Administatcr  or  executor  joint,   suit  brought  by  one,  how 

defect  taken  advantage  of,  71,  i". 
Administrator  foreign,  cannot  transfer  note  and  mortgage  and 
enable  assignee  to  sue,  35,  -^^ 
when  action  cannot  be  revived  against,  105,  ^'. 
common  law,  no  action  lies  cither  by  or  against,  71,  ^S  74. 
statute,  may  sue  and  be  sued,  71,  J^. 
rule  as  to  suits  by  in  Georgia,  71,  i". 
wlien  may  sue  on  judgment,  71,  ^^ 
Administrator  pendente  lite,  action  against,  75. 
Administrator  special,  no  power  to  appoint  to  defend  particu- 
lar suit,  105.  i«. 
Administrator's  bond.    See  Bond. 
Admissions,  of  guardian  adlltem  of  infant  defendant,  no  effect, 

58,  --'i,  (0,  a, 
Advers3  claimant,  not  proper  party  to  foreclosure  suit,  27,  ■■^". 
Adverse  claim,  of  title  when  one  tenant  in  common  may  main- 
tain suit  against  co-tenant  to  determine,  82,  ^. 
After  issue  joined,  meaning  of  words  in  al)atement  act,  105,  ^. 
Agency,  as  a  rule  agents  cannot  sue  respecting  subject-matter 
of,  84,  ^1. 
see  principal  and  action  by  generally,  84. 


I 


343  i>-DEX. 

Agency —  Continued. 

common,  who  parties  to  an  action  for  an  account,  §  2i,  K 
when  lepresentative  of,  necessary  party  to  suit  for  account, 

22,  -^^  el  stq. 
as  a  rule  cannot  sue  in  own  name,  84,  ^^ 
action  in  name  of  when  amendment  proper,  8.  'i. 
suing  as  plaintiff  should  di^^close  name  f)f  principal,  84,  ^. 
action  commenced  bv,  principal  may  be  substituted  for, 

lOU.  K 
for  collection,  when  bank  i.s,  85,  '-^'^ 
for  collection,  when  may  recover   from  principal  monty 

paid  liim  on  forged  uot'e,  85,  '^'-. 
for  cijUection,  when  may  be  charged  as  trustee,  So,  "^ 
defense  in  action  for  funds  cfdlected,  84,  ^■'. 
who  may  sue  upon  contract  by,  84,  ^,  et  seq. 
when  may  sue  in  own  name  upon  contracts,  84,  ^,  ^',  et  seq. 
principal  undisclosed,  either  may  sue  upon  contract,  3,  '". 
when  need  not  be  party  to  suit  to  enforce  contract  to  con- 
vey lands,  26,  ''. 
when  contract  of.  binds  both  self  and  principal,  85,  ''. 
when  personally  liable  on  contract,  85,  ^^,  et  seq. 
public,  effect  of  contract  of.  85,  '^  et  seq. 
contract  made  to,  for  benefit  of  town,  latter  may  sue,  45,  '". 
of  corporation,  latter  must  act  ly,  91,  ^■-. 
of  corporation,  when  may  bind  bV  contract.  91,  ^^,  et  seq. 
of  corporation,  when  latter  liable  for  tortious  acts  of,  91, 

^^,  et  seq. 
note  made  to  "A.  B.,  agent,"  who  sue  on,  84,  ^. 
places  notes  in  hands  of  collector,  may  sue  for  proceeds, 

84,  la. 
action  upon  note  by,  defenses  by  maker,  84.  i",  et  seq. 
when  officers  engaged  in  jocrformance  of  duty  for  city  are 

to  be  regarded  as  its.  44.  ■^. 
insolvent  partner  made  party  defendant  in  suit  by  partner 

when,  55,  ^'^. 
generally  mere,  not  proper  party  to  suit  unless,  24,  ^^. 
mere,  when  need  not  be  party  to  suit  to  enforce  mechanic's 

lien,  27,  i«. 
need  not  be  party  to  action  to  enforce  vendor's  lien  27,  ^-. 
when  money  ovei-paid  to,  effect  of  payment  to  principal.  So, 

11    J5_ 

who  accepts  part  of  price  of  goods  sold,  before  due  receives 

as  loan,  85,  ^'''. 
when  principal  may  recover  purchase  price  of  goods  sold 

by,  84,  2u. 
as  rule  principal  cannot  sue  for  money  collected  by,  until 

demand,  85,  -^. 
when  principal  may  treat  as  trustee  of  securities  held,  85,  -'. 


Agency —  Coniimied. 

principal  liable  for  acts  of,  §  85,  i,  et  seq. 
when  acts  of,  in  excess  of  authority  bind  principal,  85,  ". 
husband  acting  as,  when  wife  willnot  be  treated  as  princi- 
pal, 68,  ^«. 
employed  by  two  principals,  when  latter  liable  jointly  or 

severally, '85,  **. 
when  may  bind  principal  by  written  instrument  made  in 

own  name,  85,  *^. 
State  cannot  be  brought  into  court  by  means  of  actions 

against  its,  40,  ^^. 
iliens,  both  parties  to  contract  are,  mav  enforce  in  State  court, 

29,  ^\ 
presumption  as  to  citizenship,  29,  *. 

resident  of  State  entitled  to  benefit  of  insolvent  laws,  55,  ^ 
rights  as  to  immovable  property,  29,  ^. 
when  may  sue,  29,  ■*,  et  seq. 
right  to  sue  under  the  abandoned  and  captured  property 

act,  29,  «. 
sued  in  State  court  not  entitled  to  have  suit  dismissed  on 

that  ground,  29,  '^^. 
sued  in  State  court  may  remove  suit  to  federal  court,  29,  ^. 
Alien  enemy,  plaintiff  is,  effect,  29,  '^. 

plaintiff  is,  common-law  rule,  29,  i",  et  seq. 

plaintiff  becomes,  after  suit  brought,  effect  common  law, 

29,  ". 
may  be  sued  in  our  courts,  29,  '^,  et  seq. 
rights  of,  when  sued,  29,  i^. 
Alienage,  plea  of,  requisites,  29,  ^  et  seq. 
Allegations  in  bill  of  interpleader,  112,  ». 
Ambassador,  foreign.    See  Foreign  A^rBAssADOR. 

wlien  may  sue  in  our  courts,  29,  2. 
Amendment,  action  in  name  of  agent,  when  proper,  8,  ^i. 

on  appeal  may  not  make  new  case  against  new  parties, 

106,  -^K 
after  cause  remanded  from  supreme  court  in  action  for 

tort,  102,  '. 
when  matter  of  discretion,  103,  i^  et  seq.,  102,  1^. 
misjoinder  of  defendants  in  action  upon   contract,  effect, 

103,  ',  et  seq. 
defendant's  non-joinder  of,  cured  by,  108,  ".  ct  seq. 
of  bill  for  want  of  parties,  practice,  102,  ^^,  ^^  et  seq. 
instanter  upon  misnomer  proved,  3,  ^'^. 
failure  to  set  out  name  of  party  to  action  cannot  be  cured 

by,  3,  1. 
of  writ  by  striking  out  name,  3,  i"*. 
name  of  nominal  partv  stricken  out  bv.  100,  ^2. 
new  parties  usually  made  bv,  104,  ^e.  " ' 


315  i>'DEX, 

Amendment  —  Continued. 

new  parties  could  not  be  made  by,  at  common  law,  I  102,  ^i. 
after  decree  reversed,  new  parties,  103,  ^,  102,  '*'^,  ei  seq. 
service  of  process  not  sufficient  to  make  person  party, 

104,  K 

upon  death  of  nominal  plaintiff,  foi'mal  only,  107,  2,  et  ^eq. 
death  of  co-plaintift"  or  defendant  in  equitv,  cause  open  for, 

107,  1'. 
pleadings  against  administrator  in  individual  capacitv  may 

be,  7i. 
extent  of,  in  substituting  parties  to  pending  action,  108,  ", 

et  seq. 
Answer,  failure  to  raise  objection  for  misjoinder  of  plaintiff.^. 

effect,  100,  ^ 
defect  of  parties  plaintiff  shown  by,  effect.  102,  ^^. 
misjoinder  of  defendants,  raised  by,  100,  ^^  et  seq. 
non-joinder  of  parties,  when  proper  method  of  raising, 

objection,  100,  i". 
non-joinder  of  defendants,  objection  when  raised  by,  100,  ^'-. 
showing  non-joinder,  new  parties  made,  104,  **,  et  seq. 
wife  unites  with  husband  in,  when  jointly  sued,  equitv, 

69,  ^ 
of  wife  made  jointly  with  husband,  when  she  is  not  bound 

by,  69,  «. 
when  wife  may,  separately  in  equity,  69,  ^. 
Appeal,  amendment  not  allowed  to  make  new  case  against  new 

parties,  106.  -\ 
action  against  administrator,  time  during  which  suit  may  be 

brought,  75. 
taken  in  name  of  assignee,  interest  transferred  after  judg- 
ment, 108,  1^ 
r)laintift'  becomes  bankrupt  after  judgment  and  before, 

eftl'Ct,  53,  i«. 
appelant  becomes  bankrupt,  assignee  substituted,  108,  ^". 
discharge  of  bankrupt  pending.  eflVct,  5i,  ^^. 
plaintiff  becomes  bankrupt  after  submission  of  cause,  effect, 

53,  ^'J 
perfected,  one  of  several  appellants  dies  after,  who  may 

revive,  108,  =. 
who  may  prosecute  party  dving  after   judgment,  108,   ", 

71.  ". 
death  of  plaintiff  in  action  for  injury  to  person  jjending, 

effect,  108,  1. 
party  to  action  for  divorce  dies  pending,  effect,  108.  !•. 
death  of  party  after,  no  administrator,  revivor.  108,  ^. 
defendant  having  beneficial  interest  mav  file  bill  of  revivor, 

105,  -1. 

when  in  interpleader,  115,  ^". 


INDEX.  3ij 

kp'pe&l—  Contimied. 

right  of  interveiior  to,  §  111,  ^s. 

intervt'Utioii  must  take  place  before,  109,  ^'^. 

lies  from  what  orders  made  in  intervention.  111,  2*'. 

when  two  are  taken  jurisdiction  of  coi;rt  to  decide,  111,  ^". 

only  dismissed  by  consent  of  all  parties.  111,  '^^. 

death  of  party  after  submission  of  cause  and  before  d-cision, 

108,  i«. 
when  governor  may  prosecute,  48,  ^. 

court  may  appoint  new  guardian  ad  litem  for  infant,  58,  ^^, 
ejectment  against  husband  and  wife  for  lands  of  latter, 

death  of  former  pending,  effect.  G9,  ^^ 
husband  joins  wife  in,  effect,  1,  ^^. 

in  name  of  partnership,  when  names  of  partners  substi- 
tuted, 106,  26. 
misjoinder  of  plaintiffs  in  action  for  tort,  cause  remanded 

with  leave  to  amend,  102,  '. 
when  too  late  for  stranger  to  insist  en  being  made  party 

that  he  may,  104,  i^. 
wife,  sufficient  authorization,  69,  ^. 
who  may  on  motion  to  correct  a  judgment,  7,  ^'^. 
Appearance,  ciuse   irregularly  transmitted  from  iirferior  to 

superior  court,  when  cured  l)y,  16,  ^'^. 
of  corporation  how  made,  16,  K 
of  defendant  to  action,  effect.  16,  ^,  et  seq. 
by  attorney  ""for  defendants"  part  not  served,  effect,  15,  ^^. 
of  defendant  after  default,  effect  of.  IG,  i**.  et  seq. 
several  defendants  one  for  all,  effect.  15,  ^*,  et  seq. 
defendant  may  make  voluntary,  11,  ^,  15,  ^  et  seq. 
by  infant  how  made.  15,  ^^,  et  seq. 
of  infant  guardian  cannot  enter,  15,  ^2. 
of  insane  infant,  how  made,  15,  ",  et  seq. 
by  insane  person  or  idiot,  how  made,  15,  ". 
w^hen  not  an  intervention.  109,  ^. 

may  be  personal  or  by  counsel,  but  not  both,  15,  *,  et  seq. 
by  non-resident,  effect.  16,  ^^ 

not  sufficient  to  make  person  party  to  an  action,  1,  ^  et  seq. 
of  United  States,  how  enforceet,  IL  1. 
general  to  action,  what  is,  14,  1,  et  seq. 
general,  filing  plea  in  abatement  is,  H,,*". 
general,  prosecuting  appeal  or  writ  of  error,  amounts  to, 

14,  ',  et  seq. 
general,  when  motion  to  quash  attachment  is  not,  14,  ^". 
general,  indorsement  by  counsel  on   original  bill,   when 

amounts  to,  14.  °. 
general,  filing  general  demurrer  amounts  to,  14.  *,  et  seq. 
general,  presumed  unless  contrary  appears,  14,  ^5. 
general,  waiver  of  objections,  16,  X  d  seq. 


347  rNT>EX. 

Appearance  —  Continued. 

general,  -wliat  does  not  waive,  §  16,  ',  ei  seq. 

special,  what  is,  14,  ^,  et  seq. 

special,  when  not  abaudoued,  IG,  *'. 

special,  form  sufficient,  li,  ^'. 

special,   motion  to  dismiss  action  for  want  of  service  of 

process,  14,  ^■*. 
special,  objection  that  no  summons  issued  within  proper 

time,  14,  ^\ 
special,  objections  to  manner  of  service  is,  14,  ^-.  et  i^eq. 
special,  should  be  confined  to  particular  object,  14.  ^*'.  16.  ■•. 
special,  bv  attorney,  for  part  of  defendants,  effect  of  signing 

name,  '-for  defendants."  15.  i'. 
withdrawal  of.  effect.  17,  *,  et  seq. 
withdrawn  when  default  proper,  17,  ^. 
withdrawal,  manner  of,  17,  ^,  et  .^eq. 
withdrawal,  matter  of  discretion  of  court,  17,  ^.  et  seq. 
withdrawal  in  appellate  court,  17,  '^. 
Appellant,  becomes  bankrupt  after  appeal  perfected,  assignee 
substituted,  108,  i». 
one  of  several  dies  after  appeal  perfected,  who  may  have 
cause  revived,  lOS,  ^. 
Application,  to  other  decree  eni'olled,  court  will  not  entertain 
except,  9,  ^i. 
to  1)6  made  party  to  pending  suit,  when  denied,  5,  ^^. 
Appointment  of  guardian  ad  litem  for  infant,  when  made,  58,  **. 
of  guardian  ad  litem  for  insane  defendant,  when,  62,  *. 
and  defence  bv  guardian  ad  Litem  of  infant,  what  equivalent 

to,  5S.  12. 
of  guardian  ad  litem  for  infant,  motion  for,  when  made  bv 

plaintiff,  58,  ^^ 
of  guardian  ad  litem  for  infant  defendant,  effect  of  omis- 
sion, 60,  *>,  et  sq. 
of  euardian  ad  litem  for  infant  should  appear  of  record, 

58,  1",  etseq..  60,  «. 
of  receiver  pending  suit,  how  continued,  name.  52,  ' ,  et  seq. 
of  trustee  who  may  intervene  to  prevent,  liO,  -*'. 
Arbitration,  rights  of'infant  cannot  be  bound  by,  53,  '^,  et  seq. 
A:sault  and  battery,   action    for    against    administrator    of 
wrong-doer  lit  s  when,  76. 
death  of  plaintiff"  after  appeal,  effect,  108.  ^''. 
Assessment,  citv,  monev  overpaid,  action  will  lie  to  recover 
back.  44.  23,  et  seq' 
city,  bill  to  restrain  collection  of,  necessary  party.  28.  -'^. 
by  corporation,  suit  by  assignor  of  shai-es 'against  assignee 
for  relief,  necessary  party,  25,  ^'^. 
Assets,  unpaid  subscriptions  to  corporation,  assignee  of  bank- 
rupt should  sue  for,  54,  '^,  et  seq. 


INDEX.  3i8 

Assetts  —  Continued. 

devised,  who  trade  parties  to  suit  to  reach,  ^  22,  ^'^,  et  ssq. 
of  estate  of  decedent,  who  proper  person  to  recover,  22,  K 
administration  of  bill  for  account  of,  77,  22,  ^i. 
after  payment  of  debts  administrator  is  trustee  for  next  of 

kin,  77. 
administrator  wasting,  who  may  spply  for  appointment  of 

receiver,  75. 
necessary  party  to  suit  by  assignee  to  recover,  distributive 

share, '22,  ■*«,  et  seq. 
when  co-executor  liable  for,  77. 
bill  to  reach,  when  representatives  of  deceased  co-executor 

not  necessary  party,  22,  ^^. 
foreign  administrator  has  assets,  no  revivor,  105,  i'. 
action  relating  to,  when  heirs  should  be  parties,  22,  ^^,  et  .se^. 
when  rents  are,  73. 
Assignment,  after  bankrupt  cannot  be  party  to  action,  53,  ^. 
certified  copy  of  evidence  of  title  of  assignment  of  bank- 
rupt, etc.,  53,  *. 
of  portion  of  claim,  suit  by  assignor,  24,  ^•'. 
verbal,  of  contract  to  convey  land  may  be  enforced,  3G,  ^'. 
of  lease,  siifQcif  ncy  of,  36,  -^. 

of  note,  carriers'  security,  but  assignment  of  mortgage,  36, 2^. 
verbal,  holder  of  note  by,  may  sue  as  real  party  in  interest, 

35,  5,  et  seq. 
of  non-negotiable  chose  in  action  common  law,  who  sue, 

34:,  ^  et  seq. 
of  right  of  action  for  malicious  prosecution,  none,  38,  ^^. 
what  rights  of  action  for  torts  are  capable  of,  38,  ^^,  et  seq. 
pleading  in  trover,  when  cannot  be  amended,  38,  ♦>. 
Assignee,  of  account,  debtor  not  liable  to  suits  by  both  assignor 

and,  34,  n. 
of  foreign  administrator  cannot  sue  upon  note  and  mort- 
gage, 35,  ^^ 
of  interest  in  pending  action  transferred  after  judgment 

applied,  108,  i*. 
right  to  sue  upon  bond,  36,  i^,  et  seq. 
when  suit  of,  for  part  interest  in  bond  no  bar  to  suit  for 

whole  interest,  36,  i«. 
of  contract  for  sale  of  lands,  necessary  parties  to  suit  to 

enforce,  26,  «. 
by  parol  of  contract  to  convey  lands,  specific  performance, 

86,  1',  et  seq. 
of  corporation,  bill  to  enforce  liabilitv  of  stockholder,  when 

_  necessary  party,  25,  ^". 
rights  of,  in  relation  to  suits  upr)n  covenants  relating  to 

real  property,  36,  2=*,  et  seq. 
of  defendant  pending  suit,  made  party  how,  11,  '. 


319  INDEX. 

Assignee  —  Continued. 

wiieu  may  recover  money  advanced  for  assignment  of  de- 
mand, fraud,  etc.,  §  84,  i'. 

of  demand,  when  is  real  party  in  interest  under  Code,  34,  ^'-. 

when  may  sue  upon  split  demand,  31,  '^'■^,  etseq.,  34,  ^■^,  et  ^(^q. 

when  may  sue  in  equity,  31,  '^. 

of  part  of  claim  not  necessary  party  to  suit  thereon.  24.  »'- 

of  chose  in  action  may  sue  in  name  of  assignor,  8,'-',(t .- .  7. 

right  to  intervene,  110,  '. 

of  note,  when  may  intervene  in  suit  upon,  110,  ^*. 

of  notes,  when  may  intervene  in  suit  on  trust  deed.  110.  -•. 

of  judgment  suit  upon,  in  whose  name,  36.  ■*',  et  seq. 

of  mechanic's  lien  may  sue  in  own  name,  34,  ^". 

of  mortgagee,  bill  by, 'to  redeem,  necessary  parties,  28,  *'. 

when  as-ignor  sues  for,  upon  chose,  34,  '^,  et  i<eq. 

rights  of  in  action  on  non-negotiable  chose,  34,  •^. 

of   non-negotiable  chose,   when  debtor  becomes  directl\ 
liable  to,  34,  »,  et  seq. 

of  non-negotiable  chose,  from  trustee  in  insolvencv,  rights. 
32,  '. 

in  equity  may  sue  in  own  name,  34,  ^. 

of  non-negotiable  note  may  sue  immediate  assignor,  35.  -. 

of   non-negotiablo   note,   when    brings    suit    in  name  ci 
assignor  and  wife,  64,  ^^. 

of  note  given  in  pursuance  of  contract  rights,  35,  '^K 

of  lost  note,  rights,  35,  ^^,  et  seq. 

of  note  secured  by  mortgage,  may  enforce  lien  of,  35,  ^^. 

equitable  of  note  and  mortgage  (chattels)  may  sue  for  con- 
version, 38,  '. 

of  tirm  note,  made  to  firm  having  common  partner,  rights, 
35,  ■'. 

of  one  of  several  joint  pavees,  may  sue  upon  instrument  in 
name  of  all,  36,  ^«. 

of  note  given  for  purchase  price  of  land  riglits  of,  35,  '^■^. 

of  note  given  for  rent,  when  may  recover  amount  from 
purchaser  of  crop,  79,  ^',  35,  "-. 

of  note,  when  not  made  party  to  suit  by  admission  in  plead- 
ing, 1,  -'. 

suit  by,  olf-set  larger  than  claim  no  reason  for  making 
assignor  party,  24,  ^'-. 

when  may  sue  for  infringement  of  patent,  38.  ^^. 

plaintiff  transfers  interest  in  pending  suit,  effect,  106.  •*. 

of  separate  interests  in  policy  of  insurance,  rights,  30,  ^'^. 

when  real  party  in  interest  under  Code,  31,  ". 

of  rent,  right  to  sue  for,  ,'.6,  ^",  et  seq. 

may  be  substituted  as  party  to  pending  suit,  106,  •>. 

of  decedent  cannot  be  substituted  as  party  without  notice, 
106,  =*. 

Parti  K.S- so 


INDEX.  330 

Assignee  —  Continued. 

of  purchaser  at  sheriffs  sale  may  not  be  substituted  as 

party,  ^  lOG,  ^'. 
of  right  of  action  for  tort,  when  may  sue  in  own  name,  38,  ^^. 
may  sue  for  conversion  of  trees  in  anotlier  State,  38.  ^'. 
Assignee  of  bankrupt,  must  sue  upon  claims  and  demands  of, 
34,  -\  (4  .seg. 
mav  sue  to  recover  property  conveyed  to  defraud  creditors, 

53,  '. 

may  sue  to  set  aside  fraudulent  conveyance,  53,  ^. 

unpaid  subscriptions  to  corporation,  part  of  assets,  he  may 

sue  for,  54,  2,  et  seq. 
may  sue  in  any  court,  53,  ^. 

when  may  not  proceed  in  federal  court  against  sheriff,  53,  ^^. 
represents  both  latter  and  creditors,  53,  i^. 
failure  to  sue  for  assets  for  two  years,  effect,  54,  ^. 
refusal  to  prosecute  suit,  remedy  of  creditors,  53,  ^,  rt  seq, 
purchaser  of  demand  from,  may  sue  in  name  of,  34,  '^''^. 
when  purchaser  of  property  may  sue  for  in  own  name, 

54,  ^,  et  seq. 

when  may  not  avail  himself  of   Statute  of   Limitations, 

53, 1*. 
may  sue  to  recover  money  fraudulently  paid  bv  bankrupt, 

53,  «. 

may  sue  in  own  name,  53,  &. 

when  may  sue  in  own  name  upon  note  transferred,  53.  ^. 
necessary  party  to  suil  on  note  to  several  payees,  24,  ^^. 
and  solvent  partners  should  by  joined  in  action  upon  bond, 

54,  ^. 

when  necessary  party  to  suit  to  recover  firm  assets,  25,  ". 

when  plea  of  payment  to  latter,  no  defense  in  action  by 
former,  53,  i^. 

evidence  of  right  to  sue,  53,  ^. 

fiduciary  character  has  ceased,  effect,  34,  25. 

bankruptcy  suggested,  substitution  proper,  53,  i',  et  seq. 

substitution  proper  in  suit  against  co-partner  for  dissolu- 
tion, 54,  ^, 

appellant  becomes  bankrupt  after  appeal  perfected,  substi- 
tution, 108,  1". 
Assignee  of  foreign  bankrupt,  when  cannot  sue  for  propertv  of 

estate.  31,  '^K 
Assignee  for  benefit  of  creditors,  when  separate  creditor  may 
sue  for  covcnent  broken,  34,  -". 

suit  against  by  cestids  for  account,  necessary  party,  23,  ^^. 
Assignee  of  insolvent,  necessary  partv  to  suit  relating  to  estate 
of,  24,  ••^«,  et  seq. 

debtor,  suit  to  recover  property  of  the  estate,  proper  par- 
ties, 24,  ^^,  et  seq. 


351  ^^^^^• 

Assignee  of  Insolvent—  Coyitinued. 

eurp(jrati(ui,  wlieii  creditor  may  join  with  corporation  to 

set  aside  proceedings  in  insolvency,  ^  55,  **. 
should  be  defendant  in  suit  to  set  aside" lease,  55,  ^•'. 
Assignor,  of  account  given  as  collateral  security,  not  necessary 

party  to  suit,  24,  *^ 
of  acc()unt,  debtor  not  liable  to  suits  by  both  assignee  and, 

34,  1'. 
of  bond  for  title  not  necessary  party  to  suit  for  convey- 
ance, 26,  •*,  et  seq. 
how  sues  upon  chose  not  assignable  at  common  law,  3-1,  -. 
may  demand  indemnity  from  costs,  8,  ^,  34,  *. 
of  chose  in  action,  when  necessary  party  to  suit  on,  24,  -"^ 
of  contract,  when  need  not  be  made  i)ai-tv  to  suit  thereon, 

2U,  ^. 
of  shares  of  corporation,  suit  for  iudemnity  from  future 

assessments,  latter  not  necessary  party,  25,  ^^. 
when  liable  to  assignee  for  money  uuvanced  for  assignment 

of  demand,  34,  ^'. 
when  necessary  party  to  suit,  24,  ^". 
when  made  party  to  suit  to  enjoin  collection    of   note 

assigned  to  ficticious  person,  35,  ^'. 
of  note,  when  made  party  to  suit  by  debtor  to  redeem  prop- 

ert>^  pledged,  28,  >*. 
in  achon  on  non-negotiable  note  assignee  only  may  sue,  35, 

1,  et  scq. 
of  unnegotiable  note,  holds  title  as  trustee,  23,  ^^. 
offset  to  claim  of  assignee  no  reason  for  making  i^artv  to 

suit  of,  24,  »2, 
for  benefit  of  creditors,  necessary  partv  to  suit  bv  cestuis 

for  account,  23.  i». 
Associations  voluntary,  part  members    refusing  to   join  as 

piaintifis  in  suit,  efitct,  G,  ''. 
Assumpsit,  two  corporations  may  unitein  action  of,  90,  ^■^. 
misjoinder  of  plaintiffs,  effect,  202,  ^. 
when  action  of  will  not  lie  by  partner  against  co-partner, 

88,  1*. 
when  tort  may  be  waived  and  suit  brought  in,  81,  ^,  et  i^eq. 
when  mav  he  maintained  against  executor  of  deceased  tort 

feasor,  81,  6. 
Attachment,  right  of  assignee  to  intervene  in  suit,  110,  '. 
rights  of  intervenor  in  suit.  111.  ^'^. 
rights  of  intervenor,  when  bonds  i:)roperty,  111,  >*. 
necessarv  to  acquire  jurisdiction  over  foreign  corporation, 

91,  »,  etsiq. 
when  morion  to  quas}\  not  general  appearance,  14.  i",  et  seq. 
goods  taken  from  possession  of  sheriff,  effect,  51,  •>. 
sheriff',  liability  for  failure  to  levy,  51,  ^*^,  et  seq. 


INDEX.  352 

Attachment—  Co7i/mwed. 

wrongful,  when  joint  action  for  damages  against  principal 
and  sureties,  §  86,  i«,  ^". 
Attorney,  corporation  can  only  appear  by,  15,  ^. 

county  not  liable  to,  for  defense  of  pauper  prisoner,  42,  i'. 

defendant  may  ajDpear  by,  15,  ^. 

defendant  may  not  apj^ear  personally  and  by,  15,  ^. 

defendant  appearing  must  by,  be  heard  through,  15,  '. 

signature  of  for  defendants,  part  not  served,  effect,  15,  ^ j,  i'. 

infant  defendant  may  not  appoint  to  defend  action,  58,  2. 

insane  infant  may  not  appear  in  action  by,  15,  ^*^. 

when  infant  liable  to,  for  defending  bastardy  proceedings, 

59,  K 
may  not  bring  infant  into  court  by  stipulation,  15,  ^"*. 
defense  of  insane  person  made  by,  G2,  ^ 
when  may  not  intervene  in  suit  by  administrator,  110,  ^^. 
mav  not  recover  of  guardian  of  insane  person  for  services, 

.02,  12. 
guardian  ad  litem  for  infant  may  employ,  56,  ■-'^, 
to  sell  lands  substitutes  another,  who  sues  for  price,  84,  21. 
Avhen  no  fraud  need  not  be  party  to  suit  to  restrain  enforce- 
ment of  judgment,  28,  ^^. 
when  not  necessary  party  to  action,  24,  °'^,  etseq. 
next  friend  of  infant  may  employ,  56.  ^^. 
treasurer  may  not  restrain  special  to  prosecute  tax  collector, 

50,  * 
who  liable  to,  for  services  in  prosecuting  action  for  divorce 
by  wife,  G8,  ^',  et  seq. 
Attorney-general,  proper  person  to  institute  suit  upon  bond 
of  ck-rk  of  State  prison,  48,  •>. 
proper  person  to  bring  action  to  impeach  validity  of  corpo- 
ration, 91,  ^",  et  seq. 
must  institute  suit  to  set  aside  patent  for  lands  issued  bv 

United  States,  48,  ^ 
and  county  attorney  may  use  name  of  State  to  pursue  anv 

remedy,  48,  •*. 
cannot  use  name  of  State  to  pursue  funds  of  county,  48,  ••. 
Attorney  in  fact,  is  not  a  trustee,  not  necessary  party  to  repi-e- 
sent  rights  of  principal,  24,  ^i, 
of  executor,  cannot  sue  for  estate,  84,  1^, 
Authority,  of  agent,  when  principal  bound  by  acts  in  excess  of, 

85,  ^. 
Authorities,  city,  injunction  against  contract,  lowest  bidder, 

proper  parties,  28,  ^^. 
Authorization,  of  wife  to  appeal,  sufficient,  69,  ^. 
of  wife  to  sue  when  presumed,  63,  ^'^. 
of  wife  to  sue,  what  is  sufficient,  63,  ^". 
of  wife  to  be  sued,  69,  1,  et  seq. 


353  INDEX. 

Bailed  property,  jaiut  owners  to  unite  in  action  for  its  recov- 
ery, ^  U5,  1^. 
■ulieu  act  of  infant  amounts  to  conversion  of,  59,  ^*. 
Bailee,  when  may  sue  common  carrier  for  delivery  of  goods  to 

consignee, '87,  ■*. 
when  may  sue  for  injury  to  property  in  his  possession,  87,  i. 
of  monev  received  to  use  of  certain  pei-son,  liable  to  latter 

for,  87",  la. 
of  sheep,  may  sue  for  possession  of  or  injury  to,  87,  ^^ 
Avhen  guilty  of  conversion,  87,  -i. 
of  goods,  defense  for  failure  to  deliver,  87,  '^'^. 
of  property,  when  should  he  demanded,  before  right  of 

action  accrues  against,  87,  -". 
naked,  need  not  be  joined  defendant  with  administrator, 

22,  1^. 
action    against,    substitution    of    principal    as    defendant 

(Cod;'),  106,  la. 
Bailor  and  bailee,  suits  by  and  against,  87. 
Bank,  liability  upon  certificate  of  deposit,  91,  '",  et  seq. 
eX-et  of  depositing  draft  with,  85.  -^. 
liability  for  refusal  to  pay  check,  91,  i',  et  seq. 
liability  for  payment  of  forged  check,  91,  ^^j  et  seq. 
Bankrupt. "  See  Insgla-ent  ;  Assignee  of. 

assignee  of,  represents  both  former  and  creditors,  53,  ^-. 
assignee  of,  must  sue  upon  claims  and  demands  of  estate, 

31,  '^1,  et  seq. 
appellant  becomes,  after  submission  of  cause  to  supremo 

court,  effect,  53.  -^. 
corporation,  who  may  direct  filing  petition  for,  54,  ^ 
when  pavraent  of  debt  to,  no  defense  to  action  bv  assignee 

of,  53."  1=^. 
defendant  in  judgment  is,  effect  on  motion  to  amend,  5i.  '^. 
partner,  application  for  discharge,  accountable  for  what 

acts  of  co-partner,  54.  '. 
discharge  of,  effect,  5-i,  ^^  et  seq. 
discharge  of,  pending  appeal,  effect,  54,  ^^. 
discharge  of.  when  creditor  may  attack  in  State  court  for 

fraud.  51.  ''. 
plea  of  discharge  personal  to,  54.  '^,  et  stq. 
mav  lilc  plea  of  discharge  at  anv  time  before  judgment, 

54,  '-. 
monev  fvaudul.mtlv  paid  by  assignee  of,  may  sue  to  recover. 

53.  «*. 
when  may  sue  upon  note  in  own  name,  53.  •*. 
when  purchaser  of  property  of,  may  sue  in  ovsai  name.  54, 

^.  et  seq. 
when  one  of  several  payees  is,  not  necessary  party  to  suit 

on  note,  24,  "*". 


Bankrupt  —  Continued. 

partner,  when  assignee  of,  necessary  party  to  suit  to  recover 

firm  assets,  §  25,  ^. 
property  devised  in  trust,  for  suit  to  subject  to  payment  of 

debt,  necessary  parties,  23,  2^. 
when  may  be  nominal  party  to  an  action,  53,  ^,  et  scq. 
when  cannot  be  real  party  to  an  action,  53,  ^  et  seq. 
plaintiff'  in  pcmding  suit  becomes,  effect,  53,  ^^,  et  seq. 
plaint-iff  becomes  after  judgment,  and  before  appeal,  effect, 

53,  ^^. 
fact  of  suggested,  effect,  substitution,  53,  i'  et  seq. 
appellant  becomes  after  app3ai  perlecied.  assignee  substi- 
tuted, 108,  1". 
partner  suing  co-partner  for  dissolution  becomes,  substi- 
tution of  assignee  proper,  54,  <^. 
Bastard,  bond  fur  support  of  given  to  town,  latter  divided,  set- 
tlement in  new  town,  suit  on  bond,  45.  '. 
Bidder,  lowest,   contract  city  authorities,  injunction  against  to 

prevent  giving  to  one  not,  who  not  proper  party,  28,  ^j. 
Bill  for  an  acsouut  of  administration  of  assets,  Avho  may  maiii- 
tain,  77. 
of  pei'sonal  assets  of  estate  of  decedent,  who  necessary 

parties,  22,  ^1.  et  seq. 
may  be  maintained  between  joint  executors,  77. 
guardian  and  sureties  sued  jointly  in,  86.  ^^. 
wlien  will  lie  against  one  surety  of  guardian  alone,  86,  •^''. 
will  not  lie  for  single  item,  must  be  a  general,  77. 
when  co-partner  need  not  be  party  to,  89,  ^^,  et  seq. 
when  it  will  lie  against  administrator  and  heirs,  77. 
Bill  for  appointment  of  trustee,  when  trustor  is  necessarv 

party  to,  23,  ^«. 
Bill  creditors,  after  it  is  filed  against  executor  creditor  may  net 
sue  at  law,  77. 
when  may  not  be  maintained,  30,  ". 
Bill  of  discovery,  tiled  either  by  or  against  partner,  2,  ^S  ct  :^cq. 
Bill  in  equity,  proper  parties  to  who  are,  18,  1,  et  seq. 
Bill  of  inter pleaderr    See  Intekpleadee. 

v.hea  1  gatee  cannot  maintain,  77. 
Bill  of  lading,  when  consignor  mav  intervene  in  suit  UToon, 

110.  J^  "  .  -^ 

Bill  to  redeem,  administrator  may  file  when,  73. 
who  necv-ssary  parties,  28,  ^  et  seq. 
when  heirs  are  necessary  parties  to,  28,  ^,  el  seq. 
when  personal  representative  necessary  part}',  28,  ',  et  seq. 
Bill  of  revivor  not  preferable  to  scire  facias  upon  death  of 

party,  105,  i=^. 
Bill  for  final  settlement  and  distribution,  who  are  necessarv 
parties  to,  22,  '■^^,  et  seq. 


355  INDEX. 

Bill  of  eschange  p^.yable  to  drawer,  when  indorsed,  holder 

may  sul;  acceptor  in  own  name,  ^  35,  ^-^ 
Board,  and  lodging,  as  between  near  relatives   law  will  not 

imply  promise  to  pay  for,  8,  3.  '^. 
and  clothes  of  ward,  guardian  when  may  be  sued  for  alone, 

21,  1^. 
of  ward,  sureties  of  guardian  not  liable  for,  86,  ■^-. 
Board  of  supervisors  of  county,  action  against  must  be  against 

ljody,*and  not  members  of,  42,  °,  et  seq. 
of  county,  statutory  provisions  relating  to   suits  against 

must  he  strictly  followed,  42,  ^,  et  seq. 
Bond,  olMcial.    Se3  Official  Bond. 

of  administrator,  what  breaches  of  may  be  united  in  same 

action,  75. 
after  payment  of  debts  administrator  liable  upon  for  assets 

in  his' hands,  77. 
of  administrator,  suit  on,  for  not  accounting  within  proper 

time,  defense,  75. 
of  joint  administrators,  extent  of  recovery  upon  by  admin- 

ist:rator  de  boiiis  non,  77. 
of  administrator,  surety  on,  not  liable  for  claim  barred  by 

the  statute,  8G,  '•^«. 
of  administrator,  when  sureties  proper  parties  to  suit  to  set 

aside  settlement,  86,  ■'^'. 
attachment,  when  each  obligor  has  a  distinct  and  separate 

remedy  upon,  86,  -". 
court  may  require  next  friend  of  infant  to  give,  56.  --. 
of  executor,  sureties  on  not  liable  irntil  after  default  of 

pi'incipal,  86,  '^^. 
of  executor,  in  action  upon,  surviving  principal  cannot 

effect  to  non-joinder  of  executor  of  deceased  principal, 

101.  «. 
injunction,  when  sureties  are  parties  to  suit,  86.  "■'^ 
injunction,  dsath  of  principal  on,  suit  proceeds  against 

surety,  86,  '^'^. 
for  price  of  land,  payment  by  surety,  necessary  parties  to 

bill  to  subject  land  to  payment  of, '26,  ="-. 
for  title  to  land,  suit  upon  for  convevance  necessarv  parties, 

26,  •*,  et  seq. 
joint,  necessary  parties  to  suit  upon,  24,  ^^,  et  seq. 
to  retiring  partner  for  protection  against  firm  debts,  suit 

upon  proper  parties,  25,  ^'^. 
given  to  partners  in  suit  upon  assignees  of  bankrupt  should 

l)e  joined,  54,  ^. 
of  receiver,   breach  of  failure  to  pav  borrowed  monev, 

52,  3". 
of  receiver  to  the  trust  property  dates  from  time  of  giving, 

52,  ''. 


INDEX.  356 

Bond —  Continued. 

of  school  district  injunction  to  prevent  collection  of  tax  to 

pay  interest  on,  necessary  parlies,  ^  28,  ^^. 
several  when  all  the  sureties  may  be  joined  in  suit  upon, 

86,  ^«. 
official,  sureties  liable  for  what  acts  of  principal,  86,  ^^. 
official,  Avhen  sureties  not  liable  jointly  on,  86,  ^*. 
injunction  to  restrain  collection  of  tax  to  pay  necessary 

parties,  28,  ^^ 
of   town,    authorized   by    law,    constitute  valid  demand 

a^jainst,  46,  *. 
unauthorized  issuance  of,  by  town,  money  received  upon 

may  be  recovereel  back,  46,  ^. 
who  may  sue  upon  at  common  law,  36,  ^''. 
who  may  sue  upon  statute,  36,  ^'^. 
who  may  sue  on  in  California,  36,  ^. 
who  may  sue  on  in  Kentucky,  36,  ^. 
when  real  party  in  interest  may  sue  on,  36,  '',  et  seq. 
given  for  security  of  particular  person,  who  may  sue  (Iowa) , 

36,  «. 
administrators,  who  may  sue  on  for  devastavit,  75. 
of  administrator,  when  creditor  may  sue  on,  75. 
attachmert,  when  one  partner  may  sue  on,  88  ^'^, 
by  clerk  of  State  prison  who  may  sue  upon,  48,  ^. 
given  to  chancellor  in   official  capacity,   sues  in  official 

name,  49,  ^ 
of  guardian,  action  by  infant  upon,  how  prosecuted,  57,  '^'^. 
of  former  guardian,  action  by  infant,  how  brought,  57,  '^^. 
"to  justices  of  county  court  for  use  of  county,"  who  may 

sue  upon,  49,  ^. 
and  mortgage,  promise  to  third  person  latter  cannot  en- 
force, 36,  11. 
no  one  but  a  party  thereto  may  sue  upon,  36,  i,  el  seq. 
suit  by  assignee  of  one  of  two  obligees  no  bar  to  xiit  by 

same  person  after  purchase  of  whole  interest,  36,  •'•'. 
replevin,  one  of  two  obligees  insolvent,  suit  in  name  of 

solvent  obligee  alone,  55,  *. 
of  executor,  Avhen  suit  on,  properly  brought  in  name  of 

probate  judge,  49,  *^. 
in  name  of  probate  judge,  action  in  name  of,  although  office 

abolished,  32,  '^^. 
action  by  probate  judge,  when  successor  may  prosecute,  49, 

^,  et  fieq. 
to  public  officer  and  successors  of,  who  may  sue,  47,  ^. 
sheriff  may  sue  upon  lull,  51,  ^. 
taken  by  sheriff  iu  official  capacity,  suit  upon  in  name  of, 

51,  1,  et  seq. 
in  name  of  State,  action  usually  in  its  name,  but,  39,  ^'^. 


357  INDEX. 

Bond—  Continued. 

to  State  for  use  of  town,  latter  cannot  sue  in  own  name,  45,  ^. 

given  town,  new  town  equitable  owner  of  action  upon, 
name,  45,  ''. 

given  to  A.  B,,  treasurer  and  successor,  latter  may  sue 
upon,  50,  ^ 

insolvent  surety  may  sue  co-surety  on  bond  for  exonera- 
tion, 55,  ^      "         " 

of  former  administrator,  when  may  be  sued  on  for  distrib- 
utive share  without  the  appointment  of  an  administrator 
de  bonis  non,  78,  ^. 

of  cashier,  d^ath  of  insolvent,  suit  proceeds  against  sureties, 
55,  ^^. 

joint,  what  judgment  may  be  entered  against  defendants  in 
action  upon,  97,  ^',  et  seq. 

of  liusband  and  wife  made  during  coverture,  husband  sued 
alone,  68,  i". 

joint  obligors  may  be  sued  separately  (Louisiana),  97,  '**. 

forthcoming,  when  no  action  lies  against  sheriff  for  failure 

to  take  in  trover,  51,  ^^. 

when  plaintiff  may  sue  sureties  jointly  upon  two  separate, 
8(3,  r«. 

joint,  when  action  will  lie  against  the  surviving  sureties 
upon,  8ij,  ^^. 
Bondholders,  numerous,  injunction  to  restrain  collection  of 

tax,  necessary  parties,  28,  ^'. 
Books  of  corporation,  right  of  stockholder  to  inspection  of,  how 

enforcL-d,  93,  ''. 
Bound,  who  are,  by  legal  proceedings,  7,  ^. 

lien  holders  not,  unless  parties  to  action,  7,  -■'. 

no  one  is,  who  is  not  before  the  court,  7,  ', 

by  judgment,  although  not  party  to  action  by  name,  7,  '^ 
\t  seq. 

living  person  not,  by  adjudication  that  he  is  dead,  7,  ^. 

when  United  States  party  to  an  action  same  rules  apply  as 
to  others,  8,  ^ 
Bridge,  county  not  liable  for  erection  or  repair  of,  over  naviga- 
ble stream,  42,  ^",  el  seq. 

town  independent  of  statute  not  liable  for  non-repair  of, 
46,  »,  H  s-  q. 

when  ind.ctmeut  wiil  not  lie  against  officers  of  town  for 
non-repair  of,  46,  i". 

mandamus  will  not  lie  against  officers  of  town  to  compel  to 
rebuild  when,  40,  i'. 
Bi'otlisrs,  as  Ixtweeu,  law  will  not  implv  contract  to  pav  for 

lK.;u-d.83,a. 
Bundling,  custom  of,  defenso  to  action  for  seeluction  of  child, 


INDEX.  353 

Capacity,  of  party  to  sue  should  appear,  4,  ^,  et  seq.,  1,  3. 

person  might  sue  in  either  of  two  or  more,  must  show  in 

which  suit  is  brought,  4,  *,  et  seq. 
to  sue,  sufficient  description  of,  4,  '■^. 
action  will  lie  against  person  in  several,  4,  ^^  et  seq, 
in  which  person  sued  for  movables,  87,  ^^. 
in  whicli  personal  representative  liable  for  claims,  75. 
defendant  admits  right  of  administrator  tobue  bv  pleading 

in  bar,  71,  &. 
when  suit  against  administrator  in  individual  pleadings 

may  be  amended,  how,  ''■^. 
of  administrator  not  admitted,   when  action  revived  in 

name  of,  after  plea  filed,  71,  ''. 
no  action  at  common  law  by  or  against  foreign  adminis- 
trator, 71,  1*. 
person  appearing  upon  record  as  "agent,  guardian,"  etc., 

extent  of  liability  as  party,  1,  ^''. 
in  what  county  sued,  statutory  provisions  must  be  followed, 

42,  *. 
when  executor  liable  in  official,  74. 
defendant  may  be  sued  as  executor  and  devisee,  74. 
in  what  executor  should  be  sued  for  his  personal  tort,  76. 
wJien   insolvent  debtor    has   none,   to    appear    in    court, 

55,  ^. 
firm  insolvent,  in  joint  and  several,  rights  of  holder  of  note 

against,  55.  i". 
action  by  assignee  upon  negotiable  note  should  sue  in  what, 

35,  ^ 
official,  when  suit  against  administrator  in,  74. 
w'hen  personal  representative  should  bring  action  on  con- 
tract in,  72,  ^'^. 
official,  public  officer  must  pay  over  to  successor,  money 

received  in,  47,  ^  et  seq. 
official,  when  receiver  may  sue  to  annul  sales  of  property 

by  judgment  debtor,  52,"^^^  et  seq. 
of  public  officers  to  sue,  47,  i. 
person  in  possession  of  property  has  several,  law  will  attach 

to  proper,  4,  i". 
in  what  town  may  sue,  45,  i,  et  seq. 
widow  sued  as  tutrix  may  be  made  party  as  administratrix 

when  qualified,  74. 
bill  to  enjoin  conveyance  of  dower,  interest  of  wddow  in 

lands,  widow^  sued  in  what,  28,  ■^^. 
Cattle,  Avhen  joint  action  for  trespasses  of  proper,  98,  ^,  et  seq. 
Caveat  of  will,  executor  miist  conduct  the  litigation  of,  71,  ^. 
Certificate,  of  deposit,  liability  of  bank  upon.  91,  ^'. 

void,  tax  sale,  holder  may  recover  amount  paid,  of  county. 


359  rsDEX. 

Cestuis  que  trust,  suit  for  account  against  assignee  for  benefit 

of  creditors,  ueceisary  parties,  23,  ^^. 
trustee  must  account  to  for  trust  funds,  33,  •'. 
when  too  lata  to  object  to  want  of,  in  suit  for  accounting 

against  trustee  for  benefit  of  creditors,  33,  ^  j, 
or  trustee  of  express  trust  may  sue  on  contract.  52,  -,  ft  spq. 
when  should  be  party  to  suit  to  enforce  contract  to  convey 

lands,  26,  i«. 
need  not  be  joined  in  suit  by  trustee  to  foreclose  trust 

mortgage,  32,  i^. 
when  both  must  be  parties  to  suit  to  foreclose  mortgage, 

27,  ^^,  et  seq. 
suit  by  to  foreclose  mortgage,  trustee  made  party,  27,  '•^*. 
suit  to  quiet  title,  when  need  not  be  party  to,  26,  '^-. 
when  should  be  party  to  bill  to  redeem,  28,  ^'. 
may  enforce  performance  of  trust  to  purchase  land,  33.  --*. 
necessary  party  to  suit  to  diyest  minor  of  interest  iu  lands, 

23,  a^; 

suit  agiinst  trustee  for  share  in  trust  funds,  when  joint 

action,  when  serveral,  33,  -^ 
when  may  sue  alone  for  possession  of  trust  funds,  32,  ^^. 
when  may  be  joined  with  trustee  in  suit  relating  to  trust 

funds,  32,  ^  et  seq. 
when  must  be  parties  to  suit  relating  to  the  trust  funds, 

21,  i«,  23,  1,  et  seq. 
when  heir  of  deceased  is  necessary  party  to  suit  to  recover 

trust  funds,  23,  ^'^. 
general  rule  necessary  party  to  suit  either  by  or  against 

trustee,  23,  ^  et  seq.',  33,  '^,'et  seq. 
in  possession  of  land  may  sue  for  trespasses  upon,  32,  ^*. 
numerous,  when  need  not  be  parties  to  suit  by  trustee, 

23.  *. 
Gliancellor,  bond  given  to  in  official  capacity,  suit  iu  official 

name,  49,  i. 

See  Equity. 
Chancery,  when  devisee  may  prove  will  in,  13,  •*". 

S,  f  Capacity. 
Character,  iu  which  party  sues  and  status  as  basis  of  rccovei-v, 

9.  1.  ' 

ruling  in  intervention.  111,  i. 
Charity,  proceeding  to  enforce  should  be  a  responsible  relator, 

48.  '. 
public  proceedings  to  inquire  into,  relator  when  not  party 

to.  1,  ^1. 
Chattsls,  detinue,   co-tenant  of  cannot  maintain  against  co- 
tenant,  81,  i». 
forthcoming  bond,  when  no  action  lies  for  failure  of  officer 

to  take  in  trover,  51,  ^^ 


INDEX.  3G0 

Chattels —  Continued. 

sale  of  whole  interest  in  by  tenant  of  particular  estate 

reversioner  may  recover  lor,  38,  ^. 
mortgaged,  equitable  assignee  of  note  mav  sue  for  conver- 
sion of,  38,  ^. 
specific,   note  payable    in,    transferred   by   indorsement, 

holder  may  sue,  85,  ^''. 
liability  of  officer,  who  attaches,  belonging  to  co-tenants, 

81.  '^  ■■^'^. 
joint  owners  sue  for  injury  to,  95,  '. 
fraudulent  representations  in  sale  of  when  all  part  owners 

liable,  81,  ^«. 
when  co-owner  of  mav  bring  trover  against  co-owner  of, 

9>l,  ^\  et  i<eq. 
what  title  plaintiff  must  have  to  maintain  action  for,  81,  -'. 
when  one  co-tenent  of,  may  sue  co-tenant  in  trovei-,  81,  '^ 
of  wife,  when  husbanel  sues  with  wife  to  recover,  when  may 

sue  alone,  65,  ^,  et  seq. 
Check,  liability  of  bank  for  payment  of  forged,  91,  ^^,  ft  soq. 
when  holder  of  cannot  sue  bank  for  refusing  payment  of, 

91,  1^  et  seq. 
Child,  when  action  lies  for  seduction  of,  83,  ^,  et  seq. 
parent  owner  of  clothes  usee!  and  worn  by,  83,  -. 
pretermitted  in  Avill  may  recover  amount  entitled  to  from 

each  devisee  separately,  56,  •*. 
death  of   woman    leaving  monor,    when   substituted    as 

plaintiff,  106,  ^ 
Chose  in  action,  assignee,  mav  sue  upon  in  name  of  assignoV  of, 

8,  «,  et  seq. 
assignor,  when  necessary  party  to  suit  on,  24,  ^^,  et  seq. 
when  action  brought  in  name  of  elistributee  of,  when  in 

name  of  administrator,  72,  ^. 
equitable  title  transferred  to  feme  covei't,  who  mav  sue, 

72,  5. 

See  COEPOEATION. 

Church,  coruoration  liable  for  materials  furnished  to  build, 

91,  •■^'j; 

Citizen,  may  sue  alien  enemy  in  own  courts,  29,  i*,  et  seq. 

_  cor]K:ration  is,  of  creating  State,  90,  i. 
Citizenship,  member  of  corporation  presumption  as  to,  10,  ^. 

of  alien  presumption  as  to,  29,  •*. 
City,  action  against,  where  brought,  44,  '^'^. 

doubted,  whether  can  ratify  tortious  acts  of  agents  so  as 

to  become  liable,  85,  ^. 
money  overpaid  on  assessment  for,  action  will  lie  to  recovci 

back,  44,  ^'\ 
liability  for  leaving  open,  excavation  in  public  common, 


3G1  INDEX. 

City  —  Continued. 

-when  not  bound  by  contract,  44,  2". 

mode  and  manner  of  making  contracts,  44,  '^,  et  seq. 

suit  against,   subordinate  department  of,  should  not  be 

made  djfendaut,  44,  ^^. 
liabihty  for  culverts  constnicted  over  natural  streams,  siir- 

face  water,  44.  ^'^. 
ejectment  will  lie  against,  when,  44.  i'. 
when  corporate  authorities  of  may  maintain  ejectment,  land 

dedicated  to  public,  43,  '^. 
may  bring  bill  in  nature  of  interpleader  ajainst  antagonistic 

claimants  to  an  office,  43,  ^. 
sues  in  corporate  name,  43,  1,  3,  ^-. 
should  sue  in  own  name  upon  contract  made  to  A.  C,  as 

treasurer,  43,  '^. 
bill  against  to  restrain  payment  of  fire  marshal  for  ser- 
vices, latter  joined  as  parly,  28,  "-, 
materials  furnished,  deiense-^to  action  for  price,  44,  --. 
liability  for  tortious  act  of  its  ofiicers,  44,  ^j,  it  aeq. 
when  may  not  recover  of  private  owner  part  of  cost  of  wall 

made  in  improving  street,  43,  •*. 
necessary  parties,  injunction  to  prevent  paying  expenses  of 

city  election,  2S,  '^'^. 
necessary  party  to  suit  to  restrain  illegal  use  of  citv  funds, 

28,  'i^. " 
necessary  party,  injunction  to  restrain  coll2ction  of  assess- 
ments for  siiewalks,  23,  -'J,  ct  seq. 
authorities  of,  injuncrion,  contract,  lowest  bidder  vrho  not 

proper  parties,  23,  ''J. 
when  not  real  party  to  record,  2,  ^'. 

not  party,  quo  xoarranto  to,  against  single  cfdccr  of,  44.  '^^ 
power.i  of,  when  exercised  in  x)ublic,  when  private  capacitv, 

44,  *. 
liability  to  be  suel  fov  neglect  of  public  duty,  44,  ^  et  seq. 
if  elects  to  perforin  public  duty,  must  perform  fully.  44,  '^. 
IDublic  duties  from  v/hich  it  receives  valuable  privileges, 

liability,  44,  ^. 
not  liabla  for  unsafe  condition  of  school  house,  44,  ^•^. 
liable  for  negligence  in  coustructioa  of  sewers,  44,  ^^. 
must  use  sewer  so  that  it  may  not  bo  nuisance.  44,  ^^ 
not  liable  for  failure  to  provide  sewerage,  44.  **,  ct  .sen, 
may  recover  for  taxes  properly  levied,  etc.,  43,  ^. 
cannot  bring  bill  lo  enjoin  collection  of  tax  on  property 

within  limits  of,  43,  *». 
when  may  not  recover  money  paid  town  under  illegal  tax, 

46,  6. 
public  water-works  of,  when  liable   for  negligent  use  vf 

powers  relating  to,  44,  ^^. 
Paktiks  — ;u 


IXDEX,  362 

Civilly  dead,  person  at  common  law,  how  taken  advantage  of, 

2U,  ^«. 
Claim.     See  Demand. 

when  interpleader  lies,  113,  ^,  &.  6,  <. 

oljject  ot'  bill  of  interpleader,  111,  **.  ^. 

arisint<  from  transgrcs>itm  of  positive  law,  0.  '-. 
Claim  against  estate  of  decedent,  administrator  may  sue  co- 
administrator for,  Avlien,  77. 

administrator  may  be  sned  for,  75,  12,  "-. 

creditor  cannot  enforce  after  administration  closed,  75. 

when  creditor  may  proceed  directly  agaiLst  devisee  to  col- 
lect his  claim,  7d,  ^. 

executor  not  liable  to  legatee  for  debts  paid  by,  75. 

Avhat  may  be  joined,  75. 

mortgage,  75. 

failure  to  discharge  mortgage  c  f  v  rf-  (i,  <  f;,(  t.  75. 

administrator  holds,  and  rcfns..-;  .o  ^ .. ,-  .u  -^  roper  person, 
effect,  76. 

■when  non-payment  of,  may  bo  assigned  a;;  a  breach  of 
official  bond,  75. 

after  payment  of,  administrator  trustee  for  ne::t  of  kin, 
78,  «.  ' 

administrator  cannot  enforce  personal  at  law,  77. 

•when  personal  representative  liable  individually,  when  in 
oflicial  capacity,  75. 

personal  representative  only  necessary  defendant,  75. 

must  be  presented  before  suit  brough't,  75. 

wliLii  barred  by  statute  cannot  be  recovered  against  sureties 
of  administrator,  86,  ^*. 
Claim  due  estate  of  decedent,  generally,  actions  for,  must  be 
brought  by  personal  representative,  72,  ^  (t  seq. 

when  action  ui^on,  brought  in  official  caracity  by  pcrscnLl 
representative,  V2,  ^^. 

when  administrator  may  sue  rpon,  in  personal  or  repre- 
sentative capacity,  72, '^'^,  ^-. 

heir  cannot  sue  for,  except  in  case  of  collusion,  etc.,  by  tkc 
rejn-escntative,  78,  ^,  et  seq. 

note  made  to  administrator,  who  mav  sue  en  event  of  \.U 
death,  72,  le. 
Claimant,  of  attached  property  does  not  become  party  to  action 
by  Lxecutin-?  bond  required  cf  si:ch  person,  1. '' '. 

adwrse,  of  title  to  mortgaged  premises  should  i:ot  be  pariy 
to  foreclosure  suit,  5,  **. 
Clerk,  of  board  of  supervisors  necessary  partv  to  bill  to  restrain 
execution  of  tax  deed,  28,  ^^. 

of  county  court  not  proper  party  to  bill  to  restrain  taking 
lands  for  public  use,  28,  *". 
Code,  what  rights  of  action  may  be  assigned  under,  £8,  ". 


363 


i:;dex. 


Code  —  Continued. 

contract  made  for  benefit  of  third  pirsou,  citlicr  trustee  or 

Ijeneficiary  may  sue,  37,  *. 
pi'ovision.s  in  nature  of  i  iterpleader,  112,  ^,  '. 
meaning  of  term   '-defendant"   cs  affecting  quostiou   cf 

jurisdiction,  10,  ^. 
when  plaintiff  is  the  real  partv  in  interest  within  meaning 
of,  3i,  ^-,  et  seq. 
Collateral  sacurity,  assignor  of  account  given  as,  is  not  neces- 
sary party  to  suit  on,  21,  •*^. 
suit  against  coi-poratien  for  account  of,  and  for  surplr.3, 

necessary  party,  25,  ^-. 
given  to  landlord  to  sccni"e  payment  of  rent,  he  may  suo 

for  disturbance  of  his  right  to.  10,  '^. 
when  creditor  is  necessary  party  to  suit  by  debtor  to  recover, 

2i,  -'. 
note  transferred  as,  holder  may  sue,  35,  ^^  C2,  =. 
rights  of  pledgee  iu,  87,  ^'^,  et  scq. 
Collection  agent.     See  Agent  for  Collectiox. 
who  may  sue  for  funds  received  by,  84,  i^. 
defense 'to  action  against,  for  funds  collected,  ri.  ''-. 
Collection,  note  transferred  for,  holder  may  sue,  35,  '",  32,  <>. 
Collusion,  when  bar  to  action  crim.  con..  (.5,  ^-. 

aiti  lavit  to  bill  of  interpleader,  113,  ^. 
Committea.    See  Guakdian. 

insane  person  appears  by,  G2,  '^. 

of  lunatic,  when  cannot  bring  action  for  lands  of,  CI,  i^. 

insane  person  must  be  party  to  suit  of  partition  by  his,  53,  ^*. 

Commissions,  administrator  has  no  claim  against  heir  for,  72.  '■^^. 

Common,  liability  of  city  for  leaving  op^n  excavation  on,  44.  ''. 

Common,  carrier,  who  may  sue  for  injury  to  goods  delivered 

to,  87,  2. 

liable  to  either  consignor  or  consignee  for  loss  cf  goods,  37, 

°,  et  seq. 
excessive  charges  by,  may  be  recovered  back,  87,  ^^. 
when  liability  for  carriage  of  goods  commences,  87,  **. 
when  liability  for  carriage  of  goo'ls  ends,  87,  ^. 
when  liable  for  delivery  of  goods  without  i^aymeut  for, 

87.  K 
liability  of  receiver  as,  52,  2". 
Common  law,  when  action  abated  it  is  dead,  105,  ^ 
pv.rs.)n  sue  or  be  sued  in  reputed  name,  3,  ^. 
non-joinder  of  defendants  in  action  ex  contractu  only  taken 

advantage  of  by  plea  in  abatement,  100,  -'. 
tenants  in  common  could  not  join  as  parties  to  real  action, 

82,  ^  et  seq. 
trover  abated  on  death  of  defendant,  107,  -. 
joint  obligation,  effect  of,  death  of  co-surety,  SO,  ^'. 


INDEX.  364 

Co'-nmon  property,  when  co-tenant  may  recover  contribution 
from  cu-teiiant  for  removing  encumbrance  from,  82,  "*". 
wife  not  necessary  party  to  suit  relating  to,  21,  ^■*. 
Common  right,  persoiis  having,  when  may  be  dispensed  with  as 

parties  to  suit  in  equity,  19,  ^",  et  seq. 
Commonwealth,  official  bond  in  name  of,  v,-ho  may  sue,  3G,  *. 
Complainant,  deceased  executor  of,  when  not  necessary  party  to 
bill  of  revivor,  22,  ^K 
heir  of  mortgagee  not  necessary  in  foreclosure  suit,  27,  ^. 
right  to  maintain  interpleader,' 113,  *. 
wiien  interpleader  improper,  113,  ^^,  i^. 
in  interpleader,  how  should  plead,  112,  ^". 
in  interpleader,  position,  113,  ^. 
admits  what  rights  in  interpleader,  114,  ^^, 
may  not  dispute  rights  of  defendant  in  interpleader,  115,  ^. 
effect  of  decree  in  interi^leader  upon,  115,  2. 
Complaint,  filed  in  intervention,  effect,  109,  *. 
in  intervention,  at  what  stage  filed,  109,  ^. 
amended  in  order  to  bind  new  party,  104,  &. 
effect  if  not  amended,  104,  ^^. 

uniting  several  causes  of  action  in  one,  103,  5.  » 

two  causes  of  action,  Code,  must  be  separately  stated,  9,  °. 
state  cause  of  action,  action  not  dismissed  on  opening  state- 
ment of  counsel,  8,  ^'■^. 
suit  to  determine  conflicting  claims  to  knd,  plaintiff  must 

recover  if  at  all  upon  allegations  of,  9,  ^^. 
misjoinder  appearing  upon  face  of  objection  taken  by  de- 
murrer, 100,  1,  et  seq. 
when  non-joinder  of  defendants    appears ■  upcn   faco  of, 
demurrer  proper,  100,  ~^. 
Compromise,  with  co-defendant,  effect  of  in  joint  action  for 
trover,  9,  ■^^. 
of  rights  of  infant,  when  may  bo  confirmed,  CO,  •*. 
Comptroller,  of  currency,  cannot  submit  rights  of  government 

to  litigation  withoiit  statutory  enactment,  40,  ^  et  seq. 
Connivance,  when  defense  of  action  for  seduction  of  child,  83,  ^. 
Consideration,  for  contract  for  benefit  of  third  person,  effect  en 
suit  by  latter,  37,  ». 
from  B/to  X.,  note  made  to  A.,  A.  may  sue,  37,  ^^ 
Consignee,  right  of  action  against  common  carrier  for  loss  of 

_  goods,  87,  a,  et  seq. 
Consignor,  may  recover  back  excessive  charges,  87,  i". 

remedy  against  common  carrier  for  loss  of  goods  not  in, 

alone,  87.  ^,  et  seq. 
of  goods  delivered  to  common  cari'ier,  mar  sue  for  injurv 

to,  87.  2,  et  seq. 
when  may  intervene,  110,  ^'^. 
Consolidated  actions,  parties  bound  by  decision  in,  7,  ^. 


365  i^'i>EX. 

Conspiracy  to  defraud,  when  defendants  properly  joined,  in 

acdun  to  annul  acts,  98,  ^^  et  seq. 
Constitution,  providing  manner  and  courts  in  which  State  shall 

be  sued,  effect.  40,  **,  et  seq. 
State  law.  determining  rights  of  parties  under,  course  of 

federal  courts.  8.  '^. 
Construction,   building,  when  employer  liable  for  defects  in, 

83,  -^i. 
of  statutes  providing  for  survival  of  actions  for  torts,  strict, 

107.  3«. 
of  will,   suit  to  obtain,  all  interested  parsons  should  be 

parties  22,  i. 
Contract,  both  parties  to  ahens,  mav  be  enforced  in  State  court, 

29,  ^-K 
when  assignor  of  need  not  be  party  to  suit  thereon,  10,  ^. 
action  fur  breach  of,  when  joint,  94,  ^^. 
of  agent,  who  may  sue  on,  84,  ^,  et  seq.,  84,  ^^. 
of  public  agent,  effect  of,  85,  i**,  et  seq. 
of  ag.-ut,  when  he  may  be  treated  as  the  contracting  party, 

85,  J«. 
of  agent  in  his  own  name  for  undisclosed  principal  binds 

both.  83,  ^\ 
to  construct  vessel,  who  may  sue  for  breach,  81,  -^ 
building,  made  by  trustee  under  \Nill  personally  hable,  33,  ^^. 
of  city,  mode  and  manner  of  making,  44,  ^^,  et  seq. 
injunction,  city  authorities,  lowest  bidder,  who  not  proper 

parties  to  suit  against,  28,  ^^. 
to  A.  B.  as  treasurer  of  city,  suit  in  name  of  city,  43,  '. 
of  citizens  of  beligereut  States,  rule  as  to  enforcement  of, 

29,  1^  et  seq. 
when  agents  of  corporation  may  bind  by,  91,  ^^  et  seq. 
of  corporation  in  foreign  state,*liability  of,  for.  91,  ^ 
joinder  of  det'eadants  in  suit  upon,  generally,  97. 
when  defendants  improperly  joined  in  action  ui)on,  97.  •'. 
one  who  has  repudiated  for  fraud  may  sue  wrong-doer,  38,  ^. 
by  guardian  for  board  and  clothes  of  ward,  former  may  be 

sued  alone,  21,  ^''. 
of  guarantors,  when  all  may  be  joined  as  defendants,  97,  ». 
to  pav  to  husband  or  ^vife  during  life  of  longest  liver,  sur- 
vives to  wife,  64,  ^". 
in  relation  to  personal  securit^-  of  wife,  husband  and  wifo 

sue,  65,  ^^. 
when  husband  and  wife  joined  in  action  upon,  63,  ••,  68,  ^. 
of  husband  and  wife  to  execute  mortgage,  will  be  enforced, 

69,  1^ 
of  infant  as  rule  voidable,  59,  -. 
of  employment,  infant  may  sue  for  breach  of,  56,  ^. 
liability  of  insane  person  for,  62,  **,  et  seq. 


INDEX.  336 

Contract — Continued. 

legal  interest  in  whom,  31,  '^. 

person  beneficially  interested  may  sue  in  equity,  31,  ^. 

made  to  two  lor  benefit  of  one  will  sustain  joint  action,  9i,  *. 

to  two,  when  severance  of  cause  of  action  upon,  9i.  *>. 

joint,  upon  death  of  one  party  may  proceed  against  sur- 
vivor, 74. 

joint,  suit  on  infancy  pleaded  by  one,  practice,  59,  i^. 

joint,  who  made  defendants  in  action  upon,  97,  ',  et  seq. 

joint,  in  equity,  all  persons  liable  upon  may  be  sued,  74. 

on  death  of  joint  defendant  action  procekls  against  sur- 
vivor, on  his  death  against  his  executor,  107,  ^i.  et  seq. 

joint,  survivor  and  representative  of  decedent  never  jomed 
in  action  upon  at  law,  74. 

joint,  effect  of  judgment  on,  97,  ^c, 

joint  and  several,  who  sued  upon,  97,  i^,  et  ?eq. 

joint  and  several,  generally,  personal  repi-esentatives  can- 
not be  joined  with  the  survivor  in  actions  upon,  74. 

for  labor  when  joint,  94,  ^,  et  seq. 

for  labor,  when  owner  of  premises  need  not  be  party  to 
action  to  enforce  lien,  27,  ^^. 

to  convey  lands,  who  joined  as  defendants  in  suit  against 
estate  to  enforce,  78,  ^s,  22,  '. 

of  sale  of  interest  in  realty  infant  may  sue  to  set  aside, 
after  majority,  57,  ^*. 

of  sale  of  landl  when  co-makers  of  note  for  purchase  price 
may  sue  for  recision  of,  9(5,  ^'-. 

to  convey  lands,  when  purchase  price  treated  as  land  in 
equity,' 78,  '", 

to  convey  land,  necessary  party  to  suit  to  compel  specific 
performance  of,  26,  *>,  et  t^eq." 

for  sale  of  real  estate,  when  obligors  may  unite  in  suit  to 
set  aside  tax  deeds,  96,  i'. 

person  entering  upon  lands  by  permission  must  pay  for 
their  use  in  absence  of  express,  80,  ^^. 

right  of  action  for  breach  of  parol,  for  sale  of  land,  who 
descends  to,  107,  ». 

for  conveyance  of  land,  assignee  by  verbal  assignment  may 
enforce  performance,  36,  i',  et  seq. 

to  convey  lands  to  wife,  she  may  sue  alone  to  cnfoi'ce, 
60,  37. 

to  couvev  lands  of  wife,  when  will  not  be  enforced  against 
her,  69,  i-^. 

misjoinder  of  defendants  in  action  upon  effect,  103,  <>,  et  seq. 

misjoinder  of  defendant  in  action  upon  (Code)  immaterial, 
103,  11. 

common  law,  person  liable  on,  made  in  reputed  name, 
Q  3  - 


367  INDEX. 

Contract —  Continned. 

action  iTpoii,  brouglit  iu  name  of  person  with  whom  it  was 

made,  31,  'K 
'=with  whom  or  in  whose  name  made  for  benefit  of  an- 
other "  either  may  sue,  37,  *. 
corporation  changing  name  mav  sue  in  new  upon  former, 

90,  '. 
defendant  non-joinder  of.  in  action  upon,  103.  ^i,  c4  stq. 
as.>ignment  of  note  given  in  pursuance  of,  rights  of  assignee, 

85,  ^t. 
necessary  parties  to  action  for  breaoh  of,  2i.  ^^.  et  seq. 
made  bToue  partner  for  undisclosed  firm,  latter  may  sue 

on,  8 1  ^ 
when  p  irtner  mav  sue  co-partner  upon  an  express  promise, 

88,  i«. 
of  partners,  when  by  statute  mad3  joint  and  several,  any 

partner  may  be  sued,  89,  ',  et  seq. 
for  benefit  of'third  person,  who  may  sue,  37,  ^,  ct  seq. 
personal,   how   jurisdiction  over    defendant    obtained  iu 

action  to  enforce,  11,  *. 
wrong  founded    upon  breach  of,   when  plaintiff   cannot 

recover,  91,  '^^. 
who  must  join  as  parties  plaintift'in  action  upon.  9i.  i. 
who  made  plaintiff  to  obtain  relief  upon  in  equity,  93,  ". 
at  law  same  person  cannot  be  both  plaintiff  and  defendant 

in  action  upon,  G,  ^-. 
equity,  plaintiff'  may  be  both  promisor  and  promisee  in 

action  upon,  31,  ^^. 
for  undisclosed  principal  who  may  sue,  81,  -*. 
when  joint  action  will  lie  against  principal  and  guarantor 

for  breach  of,  86,  ^». 
prohibited  in  time  of  war,  cannot  be  enforced.  29,  i'. 
suit  to  reform  on  grounel  of  mistake,  necessary  parties,  26, 

^-,  et  seq. 
suit  to  rescind,  no  general  rule  as  to  necessary  or  proper 

l)arties,  2G,  '^■^. 
breach  of  execution  sale,  officer  must  enforce,  36,  -^,  et  seq. 
r.uel  r  seal,  wlio  may  sue  thereon,  36,  ^  et  seq. 
-cud  r  seal,  not  negotiable  instrument  unless,  3o.  -' . 
r.neler  seal,  promise  by  X.  to  B.  for  benefit  of  A.,  when  lat- 
ter may  sue  rule  in  Wisconsin,  37,  ',  et  seq. 
who  may  siic  upon.  31.  i,  et  seq. 

specific  execution  of,  when  will  not  be  enforced,  9,  ^'^. 
ri'i^ht  of  surety  to  contribution  not  based  upon,  86,  ^,  ef  seq. 
of  district  board,  when  tax  payers  may  unite  in  suit  to  set 

asiele,  96,  i^. 
town  may  sue  upon,  made  to  an  agent  for  its  benefit,  45.  ^". 
either  trustee  of  express  trust,  or  cestui  may  sue  upon,  32,  '^. 


INDEX.  368 

Contract —  Continued. 

of  trustee  for  midisclosed  cestuis  is  alone  liable,  85,  ^''. 

usurious,  when  separate  action  to  recover  statutory  penalty 
for,  95,  «. 

to  wife  when  sole,  she  must  join  in  suit,  64.  ^,  et  seq. 

to  wife,  pending  coverture,  husband  sues  alone  or  jointly 
with  wife,  64,  &,  et  seq. 

of  wife,  coverture  good  defense,  68,  ^^. 

of  wife,  finding  property  may  be  enforced  when.  68,  ^'J. 
Contractor,  when  not  liable'for  acts  of  employees,  83.  ^^. 

when  liable  for  negligent  acts  of  employees,  83.  ^^. 

after  work  completed,  emplover  liable^  for  injuries  from 
defects,  83,  21. 

when  is  liable  jointly  with  employer  for  tortious  acts  of 
employees,  83,  ^". 

lien  on  lot,  for  improvement  of  street  in  S.  F.,  who  may 
enfoi'ce,  34,  ^^. 

employing  laborers  to  cut  logs,  owner  not  party  to  suit  to 
enforce  laborer's  lien,  27,  ^^. 

or  sub-contractor,  proper  parties  to  suit  to  enforce  mechan- 
ic's lien,  27,  ^^,  et  seq. 

suit  by  to  use  of  city,  on  special  tax  bill  for  street  improve- 
ments latter  is  not  the  real  party,  2,  1^. 
Contribution,  executor  of  deceased  joint  promissor  paying  note, 
may  sue  for,  72,  *-'. 

joint  action  by,  when  sureties  may  bring,  86,  ". 

statutory  reinedy  of  sux*ety  for  contribution,  cumiTlative, 
86,  «. 

bill  by  surety  to  enforce,  necessary  parties,  24,  ^^,  et  seq. 

right  of  surety  to,  from  co-surety,  86,  ^,  et  seq. 

when  surety  inay  sue  representative  of  deceased  co-surety 
for,  75. 

when  tenant  may  recover  from  co-tenant  for  removing 
encumbrance,  82,  '^^. 
Conversion,  when  bailee  guilty  of,  87,  -". 

of  chattels  mortgaged,  equitable  assignee  of  note  mav  sue 
for,  38,  '. 

survival  of  action  for,  76. 

of  title  deed,  who  may  maintain  action  for.  72.  ^i. 

of  trees  in  another  State,  action  of  trover  lies,  38,  ^,  et  seq. 

of  whale  taken  by  two  vessels,  under  contract  of  mateship, 
no  joint  action,  95,  *. 
Conveyance,  suit  for,  upon  bond  for  title,  when  assignor  neces- 
sary party,  26,  *,  et  seq. 

by  judgment  debtor,  when  receiver  may  sue  to   annul, 
52,  11. 

of  lands,  when  judgment  debtor  is  indispensible  partv  to 
suit  to  annul,  26,  **. 


369  LSDEX. 

Conveyance  —  Continued. 

of  lauds,  when  judgment  debtor  not  necessary  party  to  suit 
to  amend,  26,  '^K 

of  property  by  decedent,  by  gift,  suit  to  recover,  parties, 
22,  ^K  ft  seq. 

fraudulent,  executor  may  sue  to  set  aside,  when.  73. 

when  creditor  may  not  have  set  aside  for  fraud,  8,  ^e. 

in  fraud  of  creditors,  relief  in  equity,  when  granted, 
86,  *K 

suit  to  set  aside,  fraudulent  as  to  creditors,  necessary 
party,  26,  25. 

of  land,  fraudulent,  when  receiver  may  not  sue  tu  set  aside, 
52,  17. 

of  lands,  when  grantor  not  necessary  party  to  suit  to  cor- 
rect mistake  in,  26,  ^2. 

from  husband  to  wife,  suit  to  set  aside,  latter  should  be 
party,  69,  i«. 

name  of  A.  erased  and  B.  inserted,  latter  cannot  sue  for 
breach  of  covenant  of  seizin,  36,  '^. 

several  of  same  premises,  suit  to  set  aside,  necessary  par- 
ties, 26,  =*i. 

of  property  of  one  partner,  action  to  set  aside  and  subject 
to  payment  of  judgment  against  firm,  ueces^^ary  parties, 
25,  12". 

suit  for,  lands  held  in  trust  by  deceased  partner  for  firm, 
plaintiff  claiming  title  under  firm,  proper  parties,  26,  -. 

of  partnership  property  to  trustee,  suit  to  set  aside,  neces- 
sary parties,  25,  i^. 

suit  to  reform  deed  of  trust,  when  wife  need  not  be  party, 
69,  18. 
Corporate  name,  equity  will  enjoin  wrongful  appropriation  of, 

90.  11. 
Corporation,  necessary  party  to  suit  against  for  account  of  col- 
lateral securitie's,  25,  ''^*. 

how  must  act,  and  how  bound,  91,  22. 

when  agents  of,  may  bind  by  contract,  91,  1^,  et  seq. 

appears  in  suit  by  attorney.  15,  ^. 

not  necessary  party  to  suit  by  assignor  of  shares  of,  against 
assignee  for  indemnity  against  assessments.  25,  i^. 

two  niay  unite  in  action  for  assumpsit,  90,  1^. 

who  may  direct  filing  of  peti:ion  to  be  declared  bankrupt, 
51.  1. 

insolvent  when  creditor  may  join  with  in  suit  to  set  aside 
proceedings  in  insolvency,  55,  ^. 

may  sue  for  conspiracy  to  destroy  its  business,  90,  i^ 

business  of,  when  coi;rt  will  not  interfere  with.  91.  -''. 

equity  will  not  assume  management  of  general  business  of, 
52,'^.  et  sea. 


INDEX.  370 

Corporation —  Continued. 

injunction  to  prevent  doing  business  in  excess  of  powers, 

])arty,  28,  ^'. 
doing  business  in  foreign  state  submits  to  its  jurisdiction, 

91,  1. 
equity  will  wind  up  business  of,  52,  =. 
.  citizenship  of,  90,  ^. 
"  citizenship  of  members  of,  10,  •*. 
unincorporated  company  cannot  sue  as,  ^2,  \  et  seq. 
associates  become,  pending  action,  name  changed,  former 

cannot  be  substituted,  lOG,  i«,  92.  6. 
consoUdated,  debt  of  old  assumed  by  new,  officers  of  latter 

not  necessary  parties  to  srat  to  enforce,  L5,  -'^. 
creditor's  bill  against  to  enforce  debts  of,  vd:o  should  be 

Ijarties,  93,  ^",  et  seq. 
how  corporate  existence  put  in  issue,  CO,  '*. 
must  bo  defendant  in  proceedings  to  impugn  validity  of, 

91,  ^^,  et  seq. 
should  be  defendant  to  suit  against  director  for  wasting 

property  of,  93,  ^  et  seq. 
dissolved,  eft'ect  on  pending  action,  91,  "-. 
ceased  to  exist,  cannot  be  party  to  a  suit,  25,  ^'. 
necessary  party  to  suit  to  wind  up  its  affairs,  24,  ^^,  25,  -'. 
foreign,  may  sue  if  its  corporators  could,  90,  ^. 
foreign,  may  sue  in  federal  courts  although  prohibited  by 

law  of  State,  8,  ^. 
foreign,  when  federal  court  will  not  enjoin  cancelation  of 

license  to  do  business  within  State,  4,  ''•^. 
foreign,  jurisdiction  over,  how  acquired,  91,  ^,  et  seq. 
insurance,  stockholders  liable  for  debts  contracted  prior  to 

payment  of  capital  stock,  107,  ^'•'. 
insurance  company  may  recover  of  wrong-doer,  amount  of 

loss,  90,  la.  "^        -^ 

when  may  maintain  interpleader  against  claimants  to  a 

^  dividend,  90,  *«. 
right  to  sue  for  its  real  estate,  same  as  private  person,  CO,  ^. 
time  extended  to  commence  suits,  new  lease  of  life,  CO,  "^. 
liable  for  price  of  materials  furnished  to  build  church, 

91,  •■^". 
what  necessarv  before  suit  to  recover  money  advanced  for 

stock,  93,  5. 
must  sue  in  own  name,  3,  ^'^,  GO,  '■^. 
only  known  by  corporate  name,  91,  g. 
when  may  exist  under  either  of  two  statutes,  presumption 

as  to  name,  90,  ^. 
pending  action  by,  name  changed,  3,  ■^",  91,  «. 
changing  name  may  sue  in  new  on  former  contracts,  90,  ^ 
public  officers  are,  statute,  sue  in  name  of,  47,  ^. 


371  ^-""^-^• 

Corporation  —  CordinuecK 

"suit  against,  effect  of  misnomer,  91.  ".  ct  r-rq. 

•when  may  sue  npou  note  made  to  its  agent,  witliO"t  in- 
doi'sement.  90.  i^. 

utien  not  liable  for  acts  of  its  oflScers,  91.  ^'. 

officeix  changed  after  suit  brought  against,  who  (Icfend, 
91,  1". 

action  by  dc  facto  officers  of,  90,  '". 

must  be'  i)arty  to  bill  against  its  officers  to  restrain  mis- 
apprDpi'iation  of  trust  fund,  91,  ^^. 

"  the  neople  of  a  county  "  are  not,  cannot  sue  or  be  sued, 
41,  K 

powers  of  to  sue  and  be  sued,  90,  ^ 

mav  be  sued  in  anv  form  of  action  appropriate  to  the  fiicts, 
91, 2». 

railroad,  when  liable  for  misleading  announcements,  91.  -^. 

judgment  against  through  collusion  of  officers  of,  when 
recf-iver  may  sue  to  set  aside.  52,  ^^. 

appoint^ment  of  receiver  for,  when  does  not  dissolve,  91,  ^o. 

authority  of  receiver  of,  to  sue  for.  when  must  appear.  90,  -^ 

suit  In-  receivers  of  to  enforce  payment  of  stock,  elefense  to, 
93.  i3. 

after  receiver  appointed  for,  neither  liable  upon  trustee 
process,  91,  ^i. 

when  remedv  against  must  be  enforced  bv  the  public  au- 
thority. 91",  1-'. 

suit  relating  to  rights  of,  necessaiy  parties,  25,  ^^. 

when  ]-oad  district  may  not  sue  as*  20,  ',  et  ?eq. 

sole,  must  allege  in  what  capacity  siait  is  brought,  4,  ^. 

sole,  pi-iest  may  sue  as,  90,  *. 

ass'4s,  suit  of'  stockholder  relating    to,  necessary  partv, 
25,  ^2. 

right  of  stockholder  to  inspection  of  books,  93.  ". 

delDts  of,  bill  to  enforce  liability  of  stockholders  for,  neces- 
sary ]-)artie3.  25,  ^tJ,  et  seq. 

stockholders  cannot  make  defense  for.  91,  =. 

defunct,   when  stockholder  may  elefencl  foreclosure  suit 
against,  93,  ^.  et  seq. 

when  stockholder  mav  sue  director  for  wasting  property  of, 
93.  ^  et  seq. 

should  be  party  to  suit  by  stockholder  against  director  for 
waste,  etc.,  2o,  ^-'. 

in  liquidation,  when  directors  of,  must  account  to  stock- 
holder. 91,  33. 

when  stockholder  must  sue  to  recover  his  share  of  divi- 
elends,  91.  i^. 

when  should  be  party  to  suit  against  its  officers  and  stock- 
holders, 90,  •-'". 


INDEX.  372 

Corporation  —  Continued, 

stockholder  may  enforce  publication  of  "statement  ar.cl 
report "  of,  93,  «. 

when  acts  of,  are  restrained  by  single  stockholder,  93,  '^, 

stockholders  of,  suit  against'to  enforce  payment  of  sub- 
scription to  capital  stock,  93,  ^*,  et  seq. 

when  stockholders  allowed  to  be  substituted  as  party  in 
suit  by,  106,  ^^  90,  ^^. 

when  single  stockholder  may  sue  to  wind  up  affairs  of, 
55,  «. 

sister  State  sues  as  a,  ?9,  ^^ 

State  University  is  not,  cannot  be  sued,  40,  J^. 

when  may  sue  on  subscription,  90,  ^'°. 

unpaid  subscriptions  to,  part  of  assets  of,  assignee  of  bank- 
rupt must  sue  for,  54,  ^,  et  seq. 

superintendents  of  poor  are,  how  may  sue,  90,  ^. 

liability  for  torts  of,  agents,  etc.,  91,  '^^,  et  seq. 

liable  for  malicious  prosecution,  91,  ^^. 

when  may  sue  for  trespass  upon  lands,  90,  '',  93,  ^. 

trustee  of.  action  for  penalty  failing  to  file  report  did  not 
siu-vive,  107,  ^^ 
Corporators,  if  they  could  sue,  foreign  corporation  composed 

of,  will  be  allowed  to,  90,  ^. 
Costs,  right  of  assignor  of  unnegotiable  chose  to  indemnity 
from,  in  action,  34,  *,  8,  ^,  et  seq. 

security  for,  none  given  by  non-resident  defendant  action 
dismissed,  8,  ^^. 

guardian  ad  litem  for  infant  defendant  is  not  liable  for, 
58,  ^1. 

next  friend  of  infant  responsible  for,  56,  '6. 

when  allowed  in  interpleader,  115,  ^. 

person  beneficially  interested  prosecutes  action  in  name  of 
another,  former  liable,  2,  ^. 

plea  of  fully  administered,  found  in  favor  of  the  adminis- 
trator he  is  entitled  to,  77. 

suit  to  enforce  charity  relator  responsible  for,  48,  '. 
Co-tenant,  when  may  recover  contribution  from,  for  removing 
encumbrance  from  common  property,  82,  *". 

wlien  tenant  in,  cannot  bring  action  for  treble  damages  for 
injury  to  common  property  against,  82,  '^^. 
Counsel.    See  Attokney. 

alien  enemy  when  sned  may  employ,  29,  ^^, 

opening  statement  of,  as  a  rule  action  will  not  be  dismisst;(2 
upon,  8,  J-^ 
County,  not  liable  to  attorney  for  defense  of  pauper  prisoner, 
42,  '-. 

bond  of  justices  of  county  court  for  use  of,  suit  in  name  of 
justices,  49,  ». 


County —  Continued. 

niav  sue  on  bond  of  co-treasurer  for  money  receivable  and 

withheld,  50,  ". 
not  liable  for  bridge  over  navigable  stream,  either  erection 

or  repair  of,  42,  ^",  et  soq. 
capacitv  in  which  sued,  statutorv  manner  must  be  followed, 

42,  ^.■' 
not  liable  upon  claim  audited  and  allowed  without  i-educ- 

tion,  42,  11. 
who  may  intervene  in  suit  to  enforce  claim,  110,  ^•^. 
funds,  county  treasurer  liable  for,  50,  ^^ 
mandamus  against  its  officers  to  compel  to  hold  office  at 

county  seat,  who  party.  5,  '. 
seat,  mandamus  to   determine  who  party  to  proceeding, 

5,  '. 
when  may  recover  back  money  paid  to  its  officer,  41.  '. 
when  action  on  official  bond  properlv  brought  in  its  name, 

41,  «. 

(Georgia)  can  only  sue  in  name,  41,  ^. 
in  Georgia  can  only  be  sued  in  corporate  name.  42,  •^. 
new,  action  lies  by  oil  for  pro  rat-.L  share  of  debt.  42,  ". 
when  liable  to  physician  for  post  mortem  examination, 

42,  i«. 

funds  of  treasurer  cannot  retain  special  counsel  to  prose- 
cute tax  collector,  to  recover,  50,  ^. 

funds  of,  attornev-gereral  cannot  use  name  of  State  to  pur- 
sue, 48,  i. 

hospital,  inmate  may  not  recover  of  county  for  bad  food 
furnished,  etc.,  42,*  i-. 

not  liable   to  witness  for  injury  received  from  defect  in 
court-house,  42,  '**. 

liable  if  it  does  not  furnish  jail.  42,  ^^. 

not  liable  for  the  erection  of  jail  near  residence  of  private 
person.  42.  i^. 

is  liable  for  board,  etc.,  of  jury  kept  together  by  order  of 
court,  42,  1^. 

all  ordinary  suits  for  school  money  are  bronght  in  its  name, 
41,  ■*,  et  seq. 

proper  party  to  suit  by  owner  of  scliocl  lands  to  rcsti-ai:i 
collection  of  tax  upon,  2'^,  -^. 

no  inherent  power  to  sue,  41,  ^ 

no  manner  p  jiuteid  out  by  law  for  suit  against,  what  p;ir- 
sued,  42,  -. 

must  be  sued  in  manner  pointed  out  by  statute,  42,  ^  it  stg. 

action  must  be  against  board  of  supervisors  of,  and  not 
against  members  of,  42,  ^,  et  seq. 

liable  to  liolder  of  certificate  for  amount  paid  at  void  tax 
sale,  42,  ^. 
Partiks-  32 


INDEX.  37.J. 

County  —  Coiitinued. 

wnoii  not  liable  for  money  paid  for  redemption  of  lands 

sold  for  taxes,  42.  ^. 
County  attorney,  and  attorney-general  may  use  name  of  State 

to  pursue  any  remedy, 48,  •*.  et  seq. 
CJounty  judg3,  bill  of  to  enjoin  owner  of  plank  road  from  im- 

propc  r  interference  with,  28,  ^^. 
County  recorder.    See  riEcoEDEii  County. 
County  treasurer.    See  Treasurer  County. 
Courts,  of  adniirnlty,  ^vllen  permit  infants  to  sue  alone  for 

wages,  57,  ^.  " 
assignee  of  bankrupt  may  sue  in  any  and  in  own  name, 

53,  s. 
of  chancery  will  not  assume  management  of  general  busi- 
ness of  corporation,  52,  ^,  et  seq. 
citizen  may  sue  alien  tnemy,  where,  29,  ^*. 
action  against  city,  where  brought,  44,  '■^^. 
of  claims  of  U.  S.,  right  of  alien  to  sue  in  under  abandoned 

and  captured  property  act,  29,  ^. 
of  claims,  when  United  States  liable  to  suit  in,  40,  *,  et  seq. 
when  Avill   not  interfere  with  business  of  a  corporation, 

91,  -^\ 
county,  when  should  be  party  to  bill  to  restrain  road  over- 
seer from  imjiroperly  taking  lands  for  public  use,  28,  ^^. 
executive  department  not  responsible  to  for  performance 

of  duties,  48,  ^ 
power  to  appoint  guardian  for  insane  defendant,  62,  ■*. 
when  may  appoint  guardian  ad  litein  for  insane  defendant, 

G2,  ■*,  et  seq. 
authority  as  to  appointment  of  guardian  ad  litem  for  infant 

defendant,  58,  ^^,  et  seq. 
need  not  grant  permission  to  infant  to  sue  bv  next  friend, 

5G,  1^. 
authority  to  change  next  friend  of  infant,  56,  '^'^ 
leave  granted  person  to  intervene,  effect,  109,  *. 
l)Ower  over  friend  in  interpleader,  115,  ^,  ^. 
of  general  jurisdiction,  judge  of  not  liable  for  judicial  act, 

49,  **. 
having  jurisdiction,  right  of  party  may  be  pursued  in  any, 

8,  '. 
when  Avill  order  sale  of  property  in  partition  suit,  82,  ^^. 
may  notice  defect  of  parties  to  bill,  and  of  own  motion 

order  amendment,  102,  ^s. 
duty  of,  in  application  to  make  new  party,  104,  1. 
practice  in  making  new  party  regulated  by,  104,  \ 
cannot  object  to  manner  in  which  plaintiff  sues,  101,  K 
power  to  appoint  receiver  generally,  52,  ^  et  seq. 
without  leave  of  receiver  of,  cannot  be  sued;  52,  ^"j  ei  seq. 


375  IXDEX. 

Courts  —  Continued. 

order  of,  granting  right  to  sue  receiver  may  be  revoked, 

52,  -^,  et  seq. 
foreign  republic  when  may  sue,  39,  3. 
State  may  sue  in  its  own,  39,  ^,  et  aeq. 

in  which'State  to  be  sued,  no  provision,  effect,  40.  ^  et  r,eq. 
State,  when  creditor  may  attack,  discharge  of  bankrupt  in, 

5i,  ^'. 
when  permission  of  wife  to  sue  alone  presumed,  G3,  ^s. 
Court-house,  defects  in,  county  not  liable  to  witness  for  injuries 

received  through,  42,  ^**. 
Covenant,  when  an  action  upon  may  be  brought  by  partner 

against  co-partner,  88,  ^^. 
when  joint  action  lies  upon,  94,  ^^,  et  seq. 
when  several  action  lies  upon,  94,  i*,  et  aeq. 
against  encumbrancers,  do  not  nin  with  land,  cannot  be 

assigned,  36,  ^^ 
to  pay  mortgage,  who  may  sue  when  breach  occurs  after 

death  of  covenantee,  78,  ''^'^. 
real  assignee  may  sue  for  breach,  36,  "'-*. 
running  with  laud,  when  heir  chargeable  as  assign,  78,  ^K 
that  runs  with  land,  when  tenant  in  common  should  stie 

separately  for  breach  of,  82,  ■*. 
of  seizin,  deed  made  and  delivered,  name  of  A.  erased  and 

B.  inserted,  latter  cannot  maintain  action  for  breach  of, 

36,  -^^ 
Coverture,  assault  by  husband  ujDon  wife  during,  she  may  not 

recover,  67,  ■*.  " 
contract  bv  husband  and  wife  during,   no   joint  action 

against  both,  68,  ^^ 
contract  to  wife  pending,  husband  sues  upon  jointly  or 

with  wife,  64,  ^,  et  seq. 
contract  by  husband  and  wife  during,  for  conveyance  of 

her  lands,  will  not  be  enforced,  GO,  ^'^. 
good  defense  to  contract  of  wife,  68,  33. 
not  matter  of  defense,  but  of  abatement,  waived,  63.  **. 
husband  and  wife  join  in  actions  arising  before,  63.  ^ 
husband  sues  alone  upon  caxises  of  action  arising  after, 

63.  -'. 
liability-  of  husband  for  debts  of  wife  contracted  before, 

68,  \  et  seq. 
tort  to  wife  during,  cannot  sue  husband  for,  after  divorce, 

65,  -i^. 
rule  modilied  as  to  liability  of  husband  for  torts  of  wife 

during,  70,  ^,  et  seq. 
wife,  when  can  claim  no  indulgence  in  action  from.  69,  ''. 
Credit,  partnership  action  hv,  against  one  who  fraudulently 

induces  it  to  give,  88,  '*. 


INDEX.  37G 

CreditDr,  administrator    protects    rights    of,   iu  suit  against 

estate,  75. 
assignee  of  bankrupt  represents  both  for  new  and  later, 

53,  J^. 
propsrty  conveyed  to  defraud,  assignee  of  bankrupt  may 

sue  to  recover,  53,  '' . 
assignee  of  bankrupt  refuses  to  sue  for  debt,  remedy  of, 

53,  ^  et  seq. 
■when  may  sue  assignee  for  benefit  of,  for  covenant  broken, 

iu  separate  action.  31,  -'. 
when  appears  and  files  claim  iu  creditor's  suit  presumed  to 

be  a  party,  1,  '^. 
bill,  see  Bill  Ckeditoes. 
suits  generally,  see  S6,  '^'^,  et  peg. 
bill,  against  corporation,  who  should   be  made   parties, 

93,  Ji. 
bill,  misjoinder  of  plaintiffs,  effect,  102,  ^. 
bill,  who  necessary  parties  to,  24,  ^^,  it  seq. 
bill,  may  be  made  party'  to  creditor's  suit,  5,  *. 
bill,  discretion  of  court'^as  to  new  parties,  5,  6. 
bill,  new  party  to  made  without  order  of  court,  104,  ^, 

102,  ^'. 
bill,  after  appointment  of  receiver  in,  he  is  proper  person 

to  enforce  judgment,  8,  '^'^. 
what  breaches  of  administrator's  bond  may  be  united  in 

suit  by,  75. 
proper  parties  to  suit  upon  bond  given  to  retiring  jDartner, 

25,  J^. 
when  may  sue  on  official  bond,  75. 
when  may  proceed  directly  against  devisee  to  enforce  claim 

against'esta^e  of  decedent,  78,  ^. 
cannot  recover  of  surety  of  administrator  amount  of  claim 

barred  by  statute,  SG,''^**. 
cannot  enforce  claim  against  estate  after  administration 

closed,  75. 
of  firm,  remedy  upon  claim,  upon  death  of  co-partner,  89, 

-1,  et  seq. 
composition,  fraud  on,  when  monev  paid  mav  not  be  recov- 
ered back,  34,  2,  e, 
debtor's  conveyance  in  fraud  of,  when  equity  will  grant 

relief,  36,  ^^,  et  seq. 
when  not  entitled  to  have  conveyancs  set  aside  for  fraud, 

8,  26. 

of  bankrupt  corporation,  may  not  sue  for  assets  of,  54,  3. 
may  sue  upon  claim  against  corporation  although  receiver 

has  been  appointed  for  it.  91.  ^j. 
when  may  join  with  insolvent  corporation  in  suit  to  set 

aside  proceedings  in  insolvency,  55,  ^. 


377  INDEX. 

Creditor  —  Continued. 

wlieu  should  make  corporation  a  party  to  suit  against  its 
ofticerrf  aud  stockholders.  90,  '^. 

attaching  crop  of  tenant,  when  landlord  may  claim,  79,  ''. 

general,  when  may  not  intervene.  10  »,  ^^ 

when  may  intervene  in  attachment  suit.  110.  ^. 

may  not  intervene  in  foreclosure  suit,  110,  -^. 

wlien  enjoined  from  collecting  debt  from  surety,  86,  **. 

suit  against  debtor,  when  judgment  creditor  of  former 
should  be  party  to,  2i,  ■*. 

no  right  to  be  made  party  to  action  at  law  of  another  cred- 
itor against  common  debtor,  5.  ^, 

is  necessary  party  to  suit  by  his  debtor  to  recover  collateral 
securities,  2i,  '^. 

may  not  sue  in  own  name  upon  demand  due  estate  of 
bankrupt,  34,  "-^^  et  seq. 

when  may  attack  in  State  court,  discharge  of  bankrupt  for 
fraud,  51,  ^'. 

right  of  recovei'v  against  former  administrator  for  devas- 
tavit, 77. 

when  must  refund  excess  of  dividend  received  from  insolv- 
ent estate,  72,  '^'^,  '^^. 

when  made  parties  to  application  for  dower,  73,  ^''j  ^^. 

execution,  money  overpaid  to  sheriff  may  recov.  r  back,  51,  **. 

suit  by  to  reach  fund  of  debtcr  in  hands  of  third  p.rooii, 
necessary  party,  24,  ^. 

when  will  not  be  allowed  to  be  mado  parties  defendant  to 
foreclosure  suit,  104,  '^'^. 

when  not  liable  jointly  with  ofLicer  in  action  to  recover 
goods  attached.  98,  ^^  etstq. 

judgment,  see  Jvdct3iext  Ckeditoes. 

justice,  judgment  entitled  to  aid  of  equity,  when,  36,  "". 

judgment,  theory  upon  which  equity  acts  in  assisting  to 
reach  debtor's  property,  36,  ^■^,  ot  seq. 

juclgment,  when  should  be  party  to  suit  by  creditor  against 
debtor.  24,  ^. 

when  judgment  creditors  may  unite  as  plaintiff  in  suit  to 
enforce  ^liens,  96,  <>. 

generally  cannot  bring  action  to  recover  property  of  deced- 
ent for  the  estate,  72,  -,  et  seq. 

proper  parties  to  suit  by  assignee  of  insolvent  to  recover 
property,  24,  '^^,  et  seq'. 

personal  representative  of  estate  of  decedent  is  full  repre- 
sentative of,  71,  *. 

and  adverse  claimant  of  attached  property,  sheriff"  may  not 
compel  to  interplead,  51.  >*. 

sheriff' sells  property  under  several  executors,  may  file  bill 
of  interpleader  against,  51,  '. 


IXDEX.  378 

Creditor  —  Continued. 

riglits  of,  receiver  of  stock  of  goods,  disposes  of  same  vvitli- 
out  authority,  52,  '^,  tt  st-q. 

vi-hen  foreign  receiver  may  not  maintain  suit,  52,  ^^. 

judgment  against  corporation,  fraud  of  rights  of,  when 
receiver  may  sue  to  set  aside,  52.  ^^. 

attaching  of  husband,  when  wife  cannot  maintain  replevin 
against,  65,  ^. 

liability  of  stockholders  of  a  corporation  to,  93,  ^K  e(  seq. 

■o  hen  made  party  to  suit  by  surety  to  enforce  right  of  sub- 
stitution to  securities,  24,  ^^. 

secured  by  trust  deed,  necessary  parties  to  suit  for  account 
of  trust  fund,  23,  ^. 

when  may  enforce  resulting  trust  in  favor  of  judgment 
debt(U-,  '52,  i-*,  el  seq. 

suit  by  to  reach  property  devised  in  trust  to  use  of  bank- 
rupt, necessary  parties'  to,  23,  '^^. 

seeking  to  set  aside  trust  deed  made  by  his  debtor,  when 
he  may  sue  trustee  withoiat  joining  certui,  33,  ^. 

when  not  necessary  parties  to  suit  against  trustee  for  an 
account,  23,  2",  et  seq. 

trustees  fi)r  benefit  of,  liable  for  one  final  account,  parties, 
33,  13,  (4  seq. 

necessary  parties  to  bill  to  restrain  sale  bv  trustee  of  prop- 
erty for  benefit  of,  28,  ^^. 

trustee  of  suit  by,  to  subject  lands  of  debtor  to  payment 
of  debts,  necessary  parties,  26,  ■*",  et  seq. 
Criminal  convsrsation,  adultery  of  plaintiff  no  bar  to  action, 
63.31. 

when  cause  of  action  complete.  65,  '^». 

when  collusion  bar  to  action,  65,  ^^. 

to  support  action  must  have  been  valid  marriage,  65,  ••■'•. 

nature  of  action,  65,  -". 
Crop,  al)andoned  by  tenant,  when  landlord  may  claim  from 
attaching  creditors  of  tenant,  79,  '. 

purcliastr  of,  when  liable  to  assignee  of  note  given  for  rent 
of  land,  35,  32,  79,  17. 

when  tenant  may  maintain  trespass  against  landlord  for 
trespass  upon,  79,  ^-^ 
Cro33-pleading,  to  enable  defendants  to  litigate  their  rights,  11,  e. 

when  uiay  be  filed  in  interpleader,  li5,  *'. 
CulTsrt,  over  natural  streams,  iiability  of  city  for  ill-construed, 

41,  12. 
Curator,  ad  hoc,  when  may  represent  absentee,  29,  21,  et  seq. 

ad  litem.    See  Guakdian ;   Guardian  Ad  Litem;    Next 

FltlEND. 

ad  litem,  when  infant  appears  bv,  56,  '^'^. 
Custody,  of  lost  property,  who  enti'jed  to,  87,  ^^,  et  seq. 


379  i^'DEX. 

Dam,  lands  flowed  by  reason  of,  -who  unite  for  damages,  95,  i". 
Damages,  in  actions  crim.  con.  what  mitigation  of,  65.  •^'. 

loi-  maliciously  burning  building,  amount  not  affected  bv 

what.  38,  1*." 
for  d^atb  of  person  at  common  law  u  j  action,  72,  ''. 
no,  by  statute,  72,  ^. 
death  (jf  person  caused  by  negligence  of  railroad  company, 

recovered  by  indictment,  107,  ^^. 
action  for  injuries  to  Avife,  husband  and,  join,  Go,  ^,  et  -.eq. 
for  wrongful  seizure  of  property  exempt,  either  husband 

and  wife  may  sue  for.  or  husband  alone.  63,  ''. 
creditors  of  husband  lew  on  property  of  wife,  action  bv 

both,  66.  «. 
eviction  of  co-partners  from  lands,  -when  sue  jointly  for, 

94.  1^. 
for  flowage  of  lands,  who  unite  in  action  for.  So,  i". 
land  taken  for  public  use,  administrator  may  sue  for,  73. 
private,  arising  from  public  nuisance,  private  person  may 

sue,  30,  11. 
apportionment  of,  in  case  of  non-joinder  of  plaintiffs  in 

action  for  tort,  100,  i^.  85,  i,  et  seq. 
when  joint  action   lies  against  i^rincipal  and  sureties  for 

wrongful  issuance  of  artachment,  8i3.  i^,  et  seq. 
treble,  destruction  of  chattel,  death  of  co-defendant,  suit 

proceeds  against  survivor  or  executor,  98,  ', 
assessment  of  in  joint  action  for  trover  and  conversion, 

98,  11. 
when  tenants  in  common  may  join  in  action  to  recover,  73. 
liability  of  village  for  change  of  gi-ade  of  street,  abutting 

owm-r.  46,  i^. 
Day  in  court,  before  person  bound  by  legal  proceedings  lie 

mu:5t  have,  7,  '. 
Dead,  liying  person  not  bound  by  adjudication  of  court  that  he 

is,  7,  «.  ' 

Death,  of  joint  administrator  suggested,  suit  proceeds  against 

survivor,  75. 
of  sole  defendant  in  action,  in  whose  name  revived,  105,  --'. 
of  sole  defendant,  when  action  will  not  bo  revived,  105.  n. 
of  defendant,  when  action  may  be  revived  against  heiis, 

105,  i«, 
of  co-defendant,  in  action  for  damages  for  destraction  of 

chattel,  suit  proceeds  against  S'.irvivor  or  executor,  9S,  '. 
of  one  of  several  defendants  in  trespass,  qaare  daitsum 

fregit,  effect.  105,  ^. 
of  defendant  in  real  action,  abated.  105.  *. 
of  defendant,  bill  of  revivor  preferablo  to   scire  facias, 

105.  la. 
of  party,  when  suggested,  lOG,  '. 


Death  —  Continued. 

of  party,  effect  upon  pending  action,  105,  2,  et  seq. 
of  sole  party,  plaintiff  or  defendant,  effect,  107,  •^''. 
of  party,  personal  representative  not  bound  until  brought 

into  court,  100,  i". 
of  either  party  in  action  by  husband  and  wife  for  injury  to 

lands  of  latter  survives  to  other,  66,  ^^  H  seq. 
of  party  after  final  argument,  but  before  decree,  what 

order  made,  103,  '^^. 
of  plaintiff  befure    commencement    of   suit,   how    taken 

advantage  of,  107,  1. 
of  plaintiff',  propar  time  for  proof  of,  1C8,  ♦>. 
of  plaintiff  in  action,  who  may  revive,  105,  ^'^. 
bill  of  revivor  not  preferable "^to  scire  facias,  105.  1^. 
of  one  of  two  or  more  plaintiffs  or  defendants  within  a 

year  after  judgment,  execution  how  issued.  105,  ^. 
of  one  of  two  joint  plaintiff^*,  survivor  p-osecrtcs,  107,  ••. 
of  person  caused  by  negligence,  at  common  law  no  action 

for  damaijes,  72,  ^,  **. 
statute,  72," «. 

of  co-surety  on  joint  obligation,  effect,  86,  ^^  ft  seq. 
of  female  plaintiff  leaving  minor  child,  substitution  of  as 

party,  100,  '. 
Debts,  after  payment  of.  by  administrator  he  is  trustee  for  next 

of  Icin  alone,  78,  ^. 
of  corporation,  who  parties  to  creditor's  bill  to  enforce  pay- 
ment, 93,  11,  et  seq. 
of    insurance  corporation,   before  capital  stock  paid    in, 

stockholders  liable  for,  107,  ^«. 
action  lies  by  old  county  against  new  county  to  recover  its 

2VO  rata  sliare  of,  42,'^. 
of  lunatic,  may  be  enforced,  62,  i". 
individual,  of  partner,  when  he  sells  interest  in  firm  to 

pay,  co-pai-tner  may  sue,  88,  '^'^. 
of  husband,  suit  to  'subject  distributive  share  of  to  paj-- 

ment  of,  party,  22.  28. 
of  ward,  no  joint  action  against  guardian  and,  59,  c. 
of  wife  anti-nuptial,  husband  and  wife  jointlv  sued  for,  68, 

*,  21,  22.  J  .  >      ' 

of  wife  contracted  before  coverture,  liabilitv  of  wife  for. 

68,  1,  et  seq.,  68,  '. 
anti-nuptial,  of  wife,  she  liable  alone  for  (Code).  6S,  «. 
of  Avife,  when  husband  not  liable  for,  6S.  =*'-. 
contracted  with  wife  while  living  with  her  husband,  when 

she  is  not  liable  for.  68,  ^o.  et  seq. 
Debtor,  may  sever  joint  elemand,  31,  i«. 

by  consent  of,  assignee  may  sue  upon  part  of  elcinand, 

3-1,  ^^. 


381  INDEX. 

Debtor  —  Continued. 

non-negotiable  chose,  when  may  become  directly  liable  to ' 

the  assignee,  34,  &,  et  seq. 
execution,  suit  to  set  aside  sheriif' s  sale  of  lands,  may  be 

made  party  how,  5,  ^'^. 
when  no  action  lies  for  imprisoning  with  felons,  51,  ^^. 
suit  to  subject  lands  of,  to  payment  of  his  debts,  nectssarv 

parties  to,  26,  *". 
suit  against  assignee  of  note,  for  relief,  when  assignor  made 

party,  28,  '■^,  et  seq. 
property  of,  fraudulently  conveyed,  bill  to  reach,  necessary 

parties,  24,  ^^  et  seq. 
fraudulent  disposition  of  jn'operty,  when  will  not  be  stayed 

by  injunction,  36,  •*2. 
how  propertS'  of,  mav  be  reached  in  equitv  hv  judgment 

creditors,  36,  ^3,  et  seq.,  38,  ^«. 
judgment,  when  receiver  may  sue  to  annul  sales  of  prop- 
erty by,  52,  ". 
judgment,  resulting  trust  in  favor  of,  when  creditor  may 

enforce,  52,  ^'^,  et  seq. 
judgment,  resulting  trust  in  favor  of,  r>3ceiver  may  not 

enforce,  52,  '^'^,  et  seq. 
Decedent,  contracts  of,  in  what  capacity  executor  liable  for,  74. 
executor  carrying  on  business  of,  is  liable  psrsonally,  75. 
land  contract 'executed  by,  who  necessary  parties  in'suit  to 

enforce,  22,  ^  et  seq. 
action  for  trespass  quare  clausum  f regit  against  executor 

of  dead  wrong-doer,  lies  when,  16. 
when  administrator  may  enforce  trust  created  by,  73. 
D3C3it  action  for,  when  abated  by  death  of  defendant,  107,  ^u. 
when  all  part  owners  liable  for  in  sale  of  chattel,  81,  -'*. 
action  for,  will  lie  against  personal  representative  of  de- 
ceased wrong-doer,  when.  70. 
principal  may  sue  for  in  sale  to  agent,  84,  ^^. 
Dacision,  in  consolidated  actions,  parties  bound  by,  7,  ^. 
Dicrea,  date  of,  death  of  p  irty  after  argument  and  before,  105,  -K 
equity,  may  be  made  between  co-defendants,  9,  •*'. 
befoi-e,  defendant  cannot  revive  action,  after  cither  party 

may,  105,  '^^. 
will  not  be  rendered  settling  rights  in  absence  of  indisj)en- 

sible  party,  7,  ^  et  seq. 
all  persons  whose  interests  would  be  affected  by  should  be 

parties  to  bill  to  redeem,  28,  ^ 
enrolled  court  Avill  not  entertain  application  to  vary  it 

except,  9,  ^*. 
by  default,  none  against  an  infant,  60,  2,  et  seq. 
none  against  infant  except  iipon  full  proof,  60,  ^. 
binding  force  upon  infant,  57.  ^,  et  seq. 


DJDES.  382 

Decree  —  Continued. 

against  infant,   person  legally  competent  appearing  and 

defending,  binding,  60,  ^. 
infants  aggrieved  by,  how  may  proceed  to  obtain  redress, 

7,  1^. 
in  interpleader,  115,  i. 
binds  intervener.  111,  22. 
reversed,  when  new  parties  allowed,  103,  '^^. 
when  wife  cannot  prosecute  writ  of  error  to  reverse,  fore- 
closure, 69,  1'. 

See  Conveyance. 
Deed,  of  lands,  destroyed  before  recorded,  effect  as  to  parties  to 

suit  upon  contract  of  venue  therein  to  convey,  2u,  1^. 
misdescription  in  suit  to  correct,  necessary  parties,  several 

deeds,  26,  i«. 
suit  to  set  aside,  made  to  trustee,  by  husband  since  deceased 

for  benefit  of  wife,  necessary  party,  33,  *'. 
tax,  who  may  restrain  issuance  to  intestates  land,  78,  -^. 
unrecorded,  holder  of,  need  not  be  party  to  suit  to  quiet 

title  to  lands,  26,  6". 
Default,  appearance  of  defendant  after,  effect,  16.  ^'^.,  et  seq. 
after  appearance  Avithdra-R  n,  when  propt  r,  17,  ^. 
of  executor,  sureties  of  not  liable  until  after,  86,  ^s. 
no  decree  by,  against  an  infant,  60,  '^,  et  seq. 
judgment  should  not  be  entered  against  insane  person  by, 

62,  ^'^,  et  seq. 
Defendant,  death  of  one  of  several  in  action  for  an  accounting, 

effect,  105,  6. 
after  serv.ice  of  process,  must  appear  or  quit  the  field, 

may  appear  personally  or  by  attorney,  15,  1,  et  .^eq. 

general  appearance  by,  how' made,  14,  ^  et  seq. 

attorney  appears  for  part  of  several,  effect  of  signing  name 

after,  generally  for,  15,  ^°,  et  seq. 
voluntary  appearance  of,  equivalent  to  personal  service  of 

process,  16,  ^,  et  seq, 
appearance    by,   waives  objection   that  complaint  is  not 

signed,  16,  ^. 
several,  one  may  appear  and  defend  for  all,  15,  1*,  et  seq. 
appearance  of  after  default,  effect  of,  16,  ^■',  et  seq. 
action   to  recover  claim  against  estate,   administrator  is 

proper,  22.  12. 
duty  of  administrator  as,  75. 
co-administrator  or  c6-executor  who  refuses   to    join  as 

plaintiff  properly  made,  71,  i^. 
rights  of  alien  enemy  as,  29,  '^ 
when  assignee  of  mortgage,  only  necessarv  partv  to  bill  to 

redeem,  27,  *. 


383  i>T)EX, 

Defendant  —  Continued. 

in  suit  to  set  aside  lease  for  non-payment  of  rent,  assignee 

of  insolvent  lessee  should  be,  55.  i*. 
receiver  of  bank  properly  made,  in  suit  to  recover  special 

deposits,  52,  ^•*. 
■when  joint  action  cannot  be  maintained  against  bank  for 

deposits,  91,  ^^,  et  seq. 
in  action  upon  joint  bond,  what  judgment  may  be  properly 

entered  against,  97,  2',  et  seq. 
uniting  several  causes  of  action  against  in  one  complaint, 

103,  ^ 
■when  subordinate  department  of  city  should  not  be  joined 

as,  44,  ^1. 
both  corporation  and  receiver  for,  should  be,  in  suit  by 

creditor  to  establish  rejected  claim,  91,  ^5. 
in  action  upon  contracts,  who  joined  as,  97,  ^  et  seq. 
when  improperly  joined  in  action  on  contract,  97,  '^. 
who  joined  as  in  action  upon  joint  contract,  97,  ^,  et  seq. 
corporation  should  be,  to  suit  of  stockholder,  93.  ^,  et  seq. 
when  creditors  will  not  be  allowed  to  become,  in  foreclosure 

suit,  lOi,  1=5. 
death  of,  in  real  action,  effect  of,  105,  ^. 
death  of,  abated  action  for  breach  of  promise  of  marriage, 

107,  2a. 
death  of.  in  proceeding  to  foreclose  mechanic's  lien,  107,  ^^. 
actions  for  misfeasance  or  non-feasance  of,  abate  bv  death 

of.  107,  25. 

death  of,  in  trover  caused  abatement,  107,  2'-'. 

death  of  one  of  several  in  trespass  quare  clausian  frenit. 
105,  ^  107,  *6. 

action  on  joint  contract,  death  of  one,  suit  i^rocccd-*  against 
survivor,  or  his  death  against  his  executor,  107,  ^^,  et  seq. 

when  properly  joined,  suit  to  declare  deed  to  be  mortgage, 
99,  *. 

may  plead  as  many  defenses  as  he  may  have,  9,  -^. 

may  make  any  defense  he  may  have  against  real  or  nomi- 
nal plaintili',  2,  i,  et  seq. 

who  proper  in  ejectment,  80,  ^^,  et  seq. 

all  persons  in  possession  of  real  premises  may  be  made,  in 
ejectment,  82,  i'. 

effect  of  death  of,  in  ejectment,  77,  3*. 

in  ejectment,  plaintili'  must  show  title  before  he  can  dis- 
turb. 9,  ^S  ^',  <^^  seq. 

in  ejectment,  must  have  been  in  possession  of  some  part  of 
premises  or  no  recovery  for  plaintiff.  9,  ^^. 

who  properly  joined  in  equity,  99. 

when  equityVill  not  retain  jurisdiction  of  suit  against,  9,  ^". 

equity,  decree  between,  9,  ^^ 


Defendant — Con  t  inu  ed. 

when  properly  joined  in  snit  to  rnnnl  fraudnlc  nt  acts,  98,  ^^. 

husband,  Avhen  made,  bill  by  vcue.  t3,  ^'^,  21.  ^^. 

when  wife  forced  to  suit  through  acts  of  husband  he  is 
properly  made,  66,  ''. 

when  third  peison  may  be  joined  in  suit  by  wife  for 
divorce,  67,  i". 

husband  properly  made,  in  action  for  tort  of  his  wife,  70.  '. 

when  no  recovery  against,  in  action  for  enticing  away  wife 
of  plaintiff,  65,"  '^^,  et  seq. 

husband  and  wife  properlv  joined  as,  in  action  i-.pon  anti- 
nuptial  debt.  21,  '^'^. 

when  wife  should  be  made,  in  suit  by  husband,  63,  '. 

wife  should  be,  in  statutory  proceedings  for  sale  of  her 
lands,  69,  ^K 

wife  made,  to  bill  by  husband  to  impeach  marriage  agree- 
ment, 64,  ^. 

fact  that  wife  executes  mortgage  with  husband  sufficient 
reason  for  making.  69,  ^^. 

infants  properly  made,  if  pos  ible,  6,  ^. 

infant,  how  brought  into  court,  11,  ^,  et  seg. 

how  infant  appears  in  action  as.  58,  i,  et  seq. 

infant,  may  not  waive  service  of  process,  58,  5,  et  seq. 

infant  heirs  made,  in  suit  by  widow  for  dower,  66,  ^". 

lunatic  appears  by  guardian  or  committee,  (2.  ^,  et  seq. 

becomes  insane  pending  suit,  guardian  should  be  made 
party,  62,  •^. 

position  of,  in  interpleader,  115,  ^. 

when  intervener  may  be  substituted  as,  111.  ^'^. 

should  be  party  to  proceedings  in  error  by  iutervenor.  111,  -^. 

land  suits,  persons  made  to,  by  general  averment,  9,  -'. 

who  joined  as,  in  suit  against  estate  to  enforce  contract  to 
convey  lands,  78.  ^^. 

foreclosiii-e  of  land  contract,  requisites  for  injunction, 
insolvency,  9,  •^". 

when  properlv  joined  in  suit  to  set  aside  certificates  of  title 
to  land,  99."  y. 

when  not  entitled  to  legal  delays  for  answering,  71,  ''•'. 

bankrupt  proceedings  pending  in  federal  court,  effect  on 
motion  to  amend  a  judgment,  54,  '6. 

when  properly  joined  ni  action  upon,  foreign  judgment,  97,  ■*. 

threeways  of  bringing  into  court,  11,  ^. 

how  jurisdiction  obtained  over,  in  action  to  enforce  per- 
sonal contract,  11.  *. 

non-resident,  how  jurisdiction  obtained  over,  in  suit  to 
enforce  equitable  lien,  11,  ^. 

brought  within  jurisdiction  bv  force  or  fraud,  service  of 
process  bad,  11,  o. 


385  INDEX. 

Defendant  —  Continued. 

lion-resident  cannot  be  compelled  to  submit  to  jurisdiction 
unless,  12,  ^. 

person  made,  for  purpose  of  reaching  non-resident,  objec- 
tion, how  taken  advantage  of,  103,  ^. 

mechanic's   lieu,  foreclosure  of,  owner  of  premises  only 
necessary,  27,  ^'^. 

when  objection  to  misnomer  of,  made,  16,  ^^. 

surname  only  set  forth  in  complaint,  demurrer  will  not 
reach  objection.  3,  ^'^. 

non-resident,  became  insane  pending  litigation,  practice, 
11,  «. 

"when  plaintiff  in  action  cannot  take  nonsuit  without  con- 
sent of,  8,  1'. 

in  action  upon  note,  who  made,  97,  ^^,  et  seq. 

in  Mis.^issippi  all  persons  liable  upon  note  must  be  parties 
to  suit  on,  97,  i«. 

proper  partv  to  object  to  irregularity  in   manner,    suit 
brought,  101,  ^. 

equitable  protection  asked  by,  when  plaintiff  cannot  take 
advantage  of  defect  of  parties,  19,  i^. 

want  of  proper  parties,  Avhen  amendment  proper,  103,  ^^. 

answer  of,  shows  non-joinder,  new  parties  should  be  made, 
104,  8. 

when  may  cause  new  parties  to  be  made,  lOtt,  ^  et  seq. 

new  parties,  Code  rule  for  making.  104,  i-. 

imrts  with  interest  in  suit,  as  rule  new  parties  not  neces- 
sary, 8,  i3. 

new  party,  equitable  defense  to  action  at  law  cannot  be 
made  when,  9.  -'-'. 

new  parties,  complaint  not  amended  as  to  them,  dismissed, 
104,  i«. 

what  proceedings  insufficient  to  make  person  party,  1.  ^. 

when  person  cannot  insist  on  being  made  party,  lOi,  i'. 

misjoinder  of,  who  may  object,  101,  -. 

misjoinder  of,  objection  for,  how  raised,  100.  ^^. 

misjoinder  of  iu  action  upon  contract,  effect.  103,  ♦•,  et  seq. 

improperly  made,  stricken  out  on  motion,  10-4,  '^^. 

when  cannot  object  to  non-joinder,  101,  '. 

non-joinder  of,  how  tal^en  advantage  of,  100,  -^  et  seq. 

non-joinder  of,  in  action  tipon  contract,  effect,  103,  ^^ 

non-joinder  of.  in  action  e.x  contractu,  met  bv  plea  in  abate- 
ment, 101,  ^. 

in  tort,  non  or  misjoinder  of,  no  objection,  103,  **,  100.  -^. 

bill   to   restrain   tortious   act,   non-joinder   no   objection, 
103,  1^. 

when  partner  entitled  to  be  made,  in  action  against  co-part- 
ner, 89,  s. 

P.^KTIK.-S  — 33 


INDEX.  386 

Defendant —  Continued. 

upon  death  of  a  co-partner,  who  made,  in  action  upon 
claim  against  firm,  89,  '^'^. 

in,  against  partnersliip,  all  partners  should  be.  89,  i,  et  seg. 

when  suit  against  partnership  may  be  in  firm  name,  or  in 
that  of  partners,  86,  ^. 

when  partners  jointly  sued,  how  judgment  rendered,  89,  ^. 

person  from  whom  nothing  demanded  should  not  be  made, 
20,  e. 

personal  representatives  only  necessary  to  action  on  claim 
against  estate,  75. 

person  refusing  to  join  as  plaintiff  mav  be  made,  30,  *, 
6,*. 

when  several  persons  cannot  unite  in  action  against  one, 
94,  11,  et  seq. 

when  cannot  file  plea  in  abatement  for  non-joinder  of 
defendants,  100,  ^«. 

plea  of  infancy  by  one  joint,  practice,  59,  i^. 

admits  right  of  administrator  to  sue  by  pleading  in  bar, 
71,  5. 

judgment  bv,  against  co-defendant  must  be  cross  pleading, 
11,  ^. 

assignee  of  pending  suit,  made  party  by  supplemental  bill, 
11,  '. 

in  chancery  suit,  before  person  is,  process  must  be  prayed 
against,  1,  i^. 

"owner  of  boat"  must  be  named  and  be  served  with  pro- 
cess before  liable  as,  1,  ii,  et  seq. 

not  obliged  to  plead  until  served  with  process,  or  has 
appeared,  1,  ''. 

to  foreclosure  suit,  pendente  lite  purchaser  may  be  made 
party  when,  5,  ^,  et  seq. 

not  error  to  refuse  to  allow  pendente  lite  purchaser  to  be 
made,  104,  i*,  et  seq. 

service  of  by  mail,  what  necessary,  13,  ^,  et  seq. 

served  by  publication,  in  court  for  what  purposes,  j3,  i. 

infant  may  be  served  by  publication,  13,  ^. 

death  of  before  expiration  of  time  for  publication  of  sum- 
mons, 12,  ■'. 

pending  suit  receiver  appointed  for,  effect,  52,  ^j,  et  seq. 

residents  of  separate  places,  action  in  either  place,  10.  ^. 

when  creditor  and  officer  properly  made  in,  replevin  for 
goods  attached,  98,  ^^. 

death  of  in  action  for  replevin,  caused  abatement,  107.  ^'^. 

in  replevin,  acting  in  bad  faith,  when  sureties  may  inter- 
vene, 86,  ^^ 

death  of,  bill  of  revivor  preferable  to  scire  facias,  105,  ^^ 

entitled  to  notice  of  revival  of  action,  71,  ^^. 


3S7  Dn)EX. 

Defendant  —  Con^uiuecZ. 

joint,  upon  death  of  plaintiff,  when  allowed  to  revive  suit 

in  own  name  as  administratoi',  71,  ^o, 
death  of  in  action  to  condemn  lands,  revived  in  name  of 

heir  or  devisee,  105.  ^^. 
on  death  of  sole,  in  whose  name  action  revived,  105.  —. 
upon  death  of  sole,  when  suit  will  not  be  revived,  105,  ^^. 
before  decree  cannot  revive  action,  105,  ^•^. 
having  a  beneficial  interest  may  exhibit  bill  of  revivor,  foi 

purpose  of  appealing,  105.  ^^ 
rights  of  will  not  be  determined  after  there  has  ceased  to 

be  a  plaintiff,  9,  ^5*. 
when  ultimate  rights  of,  will  not  be  settled  in  suit,  9,  ^^. 
becomes  insolvent,  etc..  how  affects  sheriff  for  failure  to 

levy  attachment,  51,  ^^,  et  seg. 
when'  stockholder  will  be  permitted  to  become,  in   suit 

against  directors  of  corporation,  93,  ^". 
administrator  of,  cannot  applv  to  be  substituted  as  party, 

remedy,  106,  '^K  ■        ' 

when  too  late  to  object  to  substitution  of  administrator  as 

plaintiff,  106,  i«. 
action  against  bailee,  substitution  of  principal  as,  106,  ^^. 
when   executor  of  joint  debtor  cannot  be  substituted  as, 

106,  23. 
executor  of  deceased  surety  when  may  not  be  substituted 

as  defendant,  107,  ^^.        " 
after  appeal  and  new  trial  granted,  cannot  vacate  order  of 

substitution  as  party,  106,  -^. 
substitution  of  parties,  in  replevin  against  officer,  106,  '^. 
has  standing  in  court  how  long,  8,  ^K 
may  be  sued  in  several  capacities,  4,  ^",  et  seq. 
death  of  joint  in  action  for  destruction  of  chattel,  action 

proceeds  against  stirvivor  or  executor,  98,  ^. 
generally  in  actions  for  torts,  98. 
when  properly  joined  in  action  for  tort.  98,  ^. 
when  joint  action  against  for  tort  not  proper,  98,  i,  et  seq. 
who  joined  as  in  action  for  selling  liquor  to  husband,  98,  ^. 
town  must  be.  to  bill  to  restrain  treasurer  from  paying  out 

money  voted,  46,  ^^. 
when   separate  owners  of  cattle  in  common  herd,  liable 

jointly  for  trespasses,  9S,  ^,  et  srq. 
compromise  with  co-defendant  in  action  for  trover,  effect, 

9,  **5. 
proper  judgment  in  joint  action,  for  trover  and  conversion, 

98,  li. 
who  properly  joined  in  suit  to  declare  trust  in  lands,  99,  ^. 
when   truste'e  may  sue  alone  to  enforce  lien   making  co- 
trustees, 32,  ^^,  et  seg. 


INDEX.  383 

Defendant —  Continued, 

change  of  venue  of  action  at  law,  all  must  consent  to,  9,  ^5. 
cliange  of  venue  of  suit  in  equity,  rule,  9,  ^6. 
wlieu  verdict  for,  contrary  to  law,  89,  ^a. 
Defense,  suit  on  administrator's  bond,  for  not  accounting  at 

l)roper  time,  75. 
to  action  for  funds  received  as  agent  for  collection,  84.  i-^. 
money  overpaid  to  agents,  when  pavmeut  to  principal  is 

not,  85,  1*. 
W'hen  good,  85,  ^'^. 
bankruptcy  or  insolvency  of   principal  on    forthcoming 

bond,  effect  as,  86,  ■^^  etseq. 
to  suit  by  assignee  of  bankrupt  when  payment  to  bankrupt 

will  not  avail,  53,  ^3. 
what  not  in  action  against  city  for  materials  furnished, 

44,  22. 
to  action  by  de  facto  officers  of  corporation,  90,  i". 
suit  against  corporation,   officers  changed  pending,  who 

may,  91,  i». 
suit  against  corporation,  stockholders  cannot  make,  91,  &. 
coverture  as  disability  to  sue  not  matter  of  abatement,  63,  **. 
defendant  may  plead  as  many  as  he  may  have,  9,  '^^. 
discharge  of  bankrupt,  must  be  plefKled  as,  54.  ^^  et  seq. 
discharge  in  bankruptcy,  good,  anti-nuptial  debt  of  wife, 

68.5. 
discharge  in  insolvency,  when  no,  84,  ^. 
to  action  of  ejectment,  what  is  not,  80,  16,  et  seg. 
what  is  not,  in  ejectment  by  wife  against  husband,  66,  ^'^, 
of  action  of  ejectment,  in  whose  name  conducted,  80,  ^^ 
equitable,  to  ejectment  when  heirs  of  common  grantor  not 

necessary  parties,  26,  5^. 
equitable,  cannot  be  made  to  action  at  law,  when.  9,  2. 
duty  of  husl^and  to  make  for  both  self  and  wife,  69,  *. 
what  is  not  in  action  against  husband  for  necessaries,  68,  ^^. 
of  infant  made  by  person  appointed  by  court,  15,  ^'. 
infancy  good  to  action  for  breach  of  iDromise  of  marriage, 

59,  &'. 
of  insane  person,  common-law  rule,  62,  ''. 
what,  maker  may  interpose  to  action  on  note,  84,  ^",  et  seq. 
mala  fides  only,*to  action  by  holder  upon  promissory  note, 

defendant  may  make  any  against  either  real  or  nominal 

plaintiff,  2,  K 
when  pendente  lite  purchaser  may  make,    to    action    to 

recover  land,  5,  i-. 
insecure  jail  is  no,  to  action  against  sheriff  for  an  escape, 

of  sovereignty,  when  cannot  be  set  up,  40,  «. 


Defense  —  Continued. 

when  stockholder  "svill  be  prevented  to  defend  suit  against 
corporation.  93,  ^'\ 

when  stockholder  may  defend  foreclosure  suit  against  cor- 
poration, 93,  **. 

what  will  not  ho  allowed  in  suit  to  enforce  payment  of 
stock,  93,  1=5. 

to  action  for  seduction,  what  is  not,  83,  ",  et  seq. 

wife,  when  can  claim  no  indulgence  from  coverture,  69,  ^. 

one  has  right  to  another's,  latter  mav  not  withdraw  it,  8,  ^'^. 
Definition,  of  jurisdiction,  10,  i. 

of  interpleader,  112,  ^. 

of  intervention,  109,  i. 

of  indispensible  party,  18,  ^. 

of  necessary  party.  18,  **. 

of  proper  party,  18,  i". 
Delay,  intervenor  must  not  cause  in  suit,  109,  ''. 

is  entitled  to  what.  111,  i^. 
Delivery,  bailee  of  goods,  defense  for  failure,  87,  --. 

bond,  sheriff  may  unite  in  suit  in  equity  with  parties  to,  for 
protection  of  property,  51.  ^. 

common  carrier,  contracts  to  deliver  to  consignee,  87,  ^. 

bv  common  carrier  of  goods  consigned,  when  liable  for, 
'87,  *. 
Demand,  no  action  against  bailee  of  property  until  after,  gen- 
eral rule,  87,  2". 

must  be  before  suit  to  recover  back  money  advanced  for 
stock  of  a  corporation,  93,  ^. 

must  be  made  before  legacy  can  be  recovered,  77. 

what  taken  notice  of  in  morion  or  rule  to  obtain  money 
taken  under  juderment,  8,  -^. 

as  a  rule  principal  cannot  sue  agent  for  money  collected 
until  after,  85,  ^'^. 

when  none  necessary,  for  money  in  hands  of  public  officer, 
47,  11. 

no  action  against  sheriff  for  failure  to  pay  over  money  col- 
lected on  execution  until.  51,  ^-. 

of  deputy  sheriff,  when  equivalent  to  demand  of  sheriff, 
51,  23.  ■ 

when  assignee  may  recover  money  advanced  for,    from 
assignor,  3i,  ''. 

due  estate  of  bankrupt,  assignee  must  sue  upon,  34.  -^. 

against  county  allowed  for  full  amount,  remedy  to  enforce, 
42,  1*. 

due  infant,  when  guardian  may  sue  for  in  own  name,  57,  ^. 

joint,  who  must  sue  upon,  31,  i**. 

joint,  severance  by  debtor,  separate  actions,  81,  ^^ 

who  is  real  party  in  interest,  35,  i^ 


INDEX.  390 

"Demand —  Continued. 

holder  of  valid  transfer  as  against  assignor  is  real  party  in 

interest,  Code,  34,  12,  et  seq. 
purchaser  of,  from  assignee  of  bankrupt  may  sue  in  name 

of,  34,  ''\ 
unnegotiable,  attached  by  shei'iff,  may  not  sue  thereon  in 

own  name,  51,  ^. 
entire  indivisible  cause  of  action  cannot  be  split  so  as  to 

bring  separate  suits,  79,  1^. 
split,  rule  as  to  who  may  sue  at  law,  in  equity,  31,  1^,  34,  '&, 
split,  assignee  not  necessary  party  to  suit  on  the  debt,  24,  •*^. 
split,  as  assignee,  when  cannot  sue  at  law,  31,  ^^,  et  seq. 
when  assignee  may  sue,  31,  ^^. 
against  town,  subsequently  become  two  towns,   separate 

suit  for  pro  rata,  46,  '. 
Demurrer,  genei-al,  tiling,  amounts  to  general  appearance,  14,  •*. 
pleading  fails  to  show  party  is  an  infant  not  ground  for, 

56,  ^^. 
when  proper  method  of  objecting  for  misjoinder  of  parties, 

100,  \  etseq.,  100,  i«. 
for  misjoinder  of  parties  plaintiff  separate  and  distinct 

interests  asserted  proper,  100,  ^. 
mode  of  obji'Cting  to  non-joinder  of  parties,  100,  ^'^,  100,  ". 
for  non-joinder,  must  point  out  proper  parties,  100,  "'''. 
for  non-joinder  of  co-partner  in  bill  for  account  of  partner- 
ship affairs,  when  overruled,  89,  ^^,  et  seq. 
when  proper  in  interpleader,  113,  ^^,  ■"^. 
raises  objection  to  position  of  party  upon  record,  6,  ^. 
Denial,  general,  does  not  place  corporate  existence  in  issue,  90,  ^. 
Deposit,  lor  benefit  of  infant,  latter  may  sue  for,  56,  o. 
Depository,  Avhen  may  compel  interpleader,  114,  ''. 
Deputy  sheriff.    See  Sheriff. 

Description,  of  unknown  heirs,  what  sufficient,  4,  ^■*. 
party  must  be  by  name,  4,  ^. 
of  party,  what  necessary,  4,  1,  et  seq. 
of  plaintiff,  what  is  proper,  4,  ^,  et  seq. 
what  additions  to  name  of  plaintiff  are  surplusage,  4,  ^. 
Detinue,  wlien  mortgagee  of  chattels  may  maintain  against  the 

mortgagor,  36,  ^-. 
what  title  plaintiff  must  show  to  maintain  the  action,  81,  '■^''. 
will  not  lie  in  favor  of  one  co-tenant  of  chattels  against 

another  co-tenant,  81,  ^^. 
for  cliattc  1  of  wife,  suit  brought  by  Avhom,  65,  *,  et  seq. 
Devastavit,  of  administrator,  who  may  sue  on  bond  for,  V5. 
extent  of  action  for,  by  administrator  de  bonis  non  against 

foi'mer  administrator,  77. 
when  failure  to  take  out  letters  of  administrator  in  another 

State  amounts  to,  76. 


391  I'^'DEX. 

Heva.st&vit—  Continuf^d, 

suit  a:^'ainst  joint  administrators,  death  of  one,  proceeds 
a??ainst  the  survivor,  75. 

of  decea-^ed  administrator,  suit  against  surety,  representa- 
tive necossary  party,  22,  ^"*, 

action  for,  representatives  and  sureties  of  succeeding  ad- 
ministrator cannot  be  made  parties  to,  75. 
Devisee,  actions  by  or  against,  generally,  78. 

•u-lien  creditor"  may  proceed  directly  against,  to  collect  his 
claim,  78,  ^. 

may  be  sued  in  two  capacities,  when,  74. 

suit  by,  to  recover  lands  devised,  necessaiy  parties,  22,  ^i. 

when  may  maintain  ejectment  upon  will  at  instance  oi 
executor,  78,  ^'^. 

of  land,  may  sue  for  its  use  and  occupation,  78,  22. 

when  legatees  may  join  in  action  against,  to  enforce  pay- 
meat  ot  legacy,  78,  ^'^. 

generally,  cannot  bring  action  to  recover  property  of  deced- 
ent for  the  estate,  72,  2. 

exception,  72,  ^,  et  seq. 

when  rent  of  lands  belongs  to,  73. 

when  may  sue  for  trespass  upon  lands,  73. 

when  must  make  heir  party  to  bill  to  revive  suit  to  set 
aside  conveyance,  78,  '•'. 

cannot  maintain  action  for  tort  or  conversion  of  property 
of  decedent  in  his  lifetime,  78,  ■*. 

are  necessary  parties  to  suit  to  set  aside  a  will,  22,  2. 

pretermitted  child  may  recover  from  each,  amount  entitled 
to,  5(j,  *. 

of  vendor,  when  proper  party  to  suit  to  enforce  contract  for 
sale  of  lands,  26,  **. 
Discharge,  of  bankrupt  pending  appeal,  effect,  54,  ^^. 

application  for  by  bankrnpt  partner,  54,  '. 

of  bankrupt,  when  creditor  mav  attack  in   State  court, 
54.  J'. 

of  bankrupt,  effect  on  debts,  54,  ^^  et  seq. 

in  bankruptcv,  good  defense  to  action  for  anti-nuptial  debt 
of  wife,  G8,'  ^. 

in  bankruptcy  of  husband,  no  bar  to  suit  against  wife  for 
family  expenses  (Iowa),  68,  ^'^. 

plea  of  "bankrupt  may  file  at  any  time  before  judgment, 
54,  '*. 

plea  of,  personal  to  banki'upt,  54,  ^'^,  et  seq. 

after,  insolvent  cannot  sue  upon  claim  existing  prior,  55, 
^3,  et  .<eq. 

of  insolvent,  no  bar  to  suit  of  citizen  of  another  State.  55,  ^^. 

in  insolvency  when  no  defense  to  action  by  principal.  84,  *. 

in  insolvency  when  no  defense  to  action  of  trover,  55,  ^^. 


i>-DEX.  392 

Discovery,  bill  of,  see  Bill  of  Discovekt. 

infant  cannot  be  made  for  sake  of,  59,  ^^. 
Discretion,  wlien  amendment  by  making  parties  matter  of, 

103,  ly. 

allowance  of  amendment  when  first  asked  at  bearing  of 
cause,  102,  ^-. 

power  of  court  to  appoint  giiardian  ad  litem  for  infant 
defendant,  58,  ^^  et  aeq. 

appointment  of  receiver  by  court  matter  of,  52,  ^  etseq. 

of  court  to  allow  withdrawal  of  appearance,  17,  ^,  et  seq. 

of  court,  may  be  exercised  in  entry  of  judgment  in  action 
upon  bond,  97,  -^. 

of  court,  as  to  new  parties  to  creditor's  bill,  5,  ^. 

judicial,  Avhether  foreign  executor  can  be  sued,  question  of, 
rather  than  of  jui'isdiction,  7J:. 
Dismissal,  of  bill,  misjoinder  of  plaintifis,  objection  first  made 
at  hearing,  102,  '1=^. 

of  bill  for  want  of  parties,  better  practice,  102,  '^^-'^.  et  seq. 

of  action,  plaintiff  becomes  alien  enemy  pending  suit,  com- 
mon laAV,  29,  1^ 

of  action,  as  to  one  joint  tort  feasor,  effect.  98,  «. 
Dismissed,  when  intervention  will  be,  109,  ^"-i'. 
Dissolution,  of  partnership  after,  in  whose  name  suit  brought, 
88,  -^  et  seq. 

of  partnership,  suit  for,  necessary  parties,  25,  i*. 

bill  to  wind  up  affairs  of  corporation  and  declare,  party, 
24.  ^^. 
Distinction,  between  interpleader  and  bill  in  nature  of,  112,  &. 
Distributee.    See  Kin  Next  of. 

suit  by,  to  set  aside  settlement  of  administrator  on  the 
ground  of  fraud,  parties,  78,  ^". 

when  may  maintain  action  on  bond  of  former  administrator 
no  administrator  de  hotiis  non,  78,  *^. 

necessary  party  to  suit  by  assignee  of,  to  recover  share,  22, 
^^,  et  seq. 

of  chose  in  action,  when  suit  upon  brought  in  own  name, 
72,  3. 

over  advances,   suit  by  administrator   to  recover    from, 
necessary  parties,  22,'2^ 
Distributive  share,  when  may  be  recovered  without  appoint- 
ment of  administrator  de  bonis  non.  78   i^. 

necessarv  party  action  by  assignee  of  distributee  to  recover, 
22,  ••»,  et  seq. 

bill  to  recover,  necessary  parties  to,  22,  •*!,  et  seq. 

all  persons  entitled  to.  necessary  pirties  to  bill  for  settle- 
ment of  estate,  22,  •**>. 

of  wife  in  estate  of  decedent,  when  husband  mav  sue  for 
alone,  6G,  ^-'. 


393  IXDEX. 

Distributive  Share  —  Continued. 

of  wife,  in  estate  of  decedent,  when  action  brought  by  hus- 
band and  wife,  G6,  *i, 

of  wife,  in  estate  of  decedent,  when  she  mav  sue  alone  for. 
66,  ■'a. 

suit  to  subject  to  payment  of  debt  of  husband,  former 
must  be  party,  22,  '^*. 
Dividend,  when  corporation  may  maintain  interpleader  against 
opposing  claimants  to,  90^^  ^^. 

when   stockholder  must   sue  corporation    to  recover  his 
share  of,  91,  i*. 
Divorce,  party  to  action  dies  pending  appeal  abates.  lOS,  ^i. 

husband  not  liable  for  attornev  fees  of  wife  in  suit  for, 
68,  ^',  et  seq. 

after,  wife  may  sue  husband  for  money  borrowed  during 
coverture,  67,  ^^. 

after,  wife  may  not  recover  for  assault  committed  by  hus- 
band before^  67,  '. 

after,  wife  cannot  sue  husband  for  tort  during  coverture, 

65,  *2. 

when   trustee  of  property  for  use  of  husband  necessary 
party  to  suit,  23,  ^^  67,  '^^. 
Dog,  injury  done  bv,  action  for  damages,  survives  death  of 

piaintifi;  107,  =*\ 
Donation,  materials  furnished  to  build  church,  when  corpora- 
tion liable  for,  91,  -^. 
Dormant  partner,  need  not  be  made  plaintiflfin  firm  suit,  88,  *. 

when  need  not  be  party  to  suit,  25,  *. 
Dower,  when  set  aside  upon  ex  parte  pstition,  78,  ^**. 

suit  for  by  widow,  infant  heirs  made  defendants,  66,  ^". 
suit  bv  widow,  marriage  of  pending,  husband  made  partv, 

66,  «. 

interests,  suit  for  by  widow,  necessary  parties,  26,  ^^  et  seg. 
widow  mav  maintain  action  for,  against  purchaser  of  hus- 
band, 66,  *«. 
mortgage  by  husband  and  wife,  latter  party  to  suit  to  fore- 
close, in  ordtr  to  bar,  27,  -'. 
claimant  of.  when  pi'oper  party  to  suit  for  specific  perform- 
ance, 26,  ^  et  !>eq. 
interests,  claimants  of,  should  be  parties  to  partition  suit, 

28,  1^  et  seq. 
bill  to  prevent  conveyance  of,  capacitv  in  which  made 

party,  28,  •««. 
widow  remitted  to  right  of,  when,  78,  ^'. 
Draft,  deposited  with  bank,  effect,  85,  -". 
Drainage,  citv  not  liable  for  want  of  efficiencv  in  plan  adopted. 

U.  «. 
Driver  of  team,  who  liable  for  incompatence  of,  83,  --,  et  seq. 


INDEX.  394 

Duty,  public,  if  city  elects  to  perform,  must  perform  fnllj',  44,  2. 

liability  of  city  to  be  sued  for  neglect  of,  44,  ^  et  seq. 

city  receiving  valuable  privileges  from,  liability,  44,  ^. 
Duties'^of  public  ofdcer,  for  what  liable  for  negligent  perform- 
ance, 47,  *. 
Earnings  of  wife,  when  she  may  sue  alone  for,  64,  **. 
Ejectment,  when  does  not  abate,  107,  ^1,  et  seq. 

when  action  cannot  be  defeated,  80,  ^^,  et  seq. 

theory  upon  which  action  is  founded,  80,  ". 

when  administrator  may  maintain,  73. 

when  administrator  may  maintain  for  benefit  of  heirs, 
.  78,  a". 

when  corporate  authorities  of  city  may  maintain,  43,  ^. 

when  will  lie  agamst  city,  44,  ^'. 

when  extcutor  may  maintain,  73. 

guardian  in  socage  may  maintain,  for  lands  of  infant,  57,  ^. 

when  heir  may  maintain,  73.  78,  '^^. 

when  heir  may  maintain  against  administrator,  76. 

when  husband  may  maintain  for  lands  of  wife,  in  own 
name  alone,  66,  i'. 

for  lands  of  wife,  husband  should  be  joined  as  complain- 
ant, 66,  1^  et  seq. 

when  wife  may  maintain  even  against  husband,  66,  ^'^. 

when  tenant  in  common  may  bring  against  co-tenant,  82,  i**. 

all  tenants  in  common  must  join  as  plaintifis  in  action  of, 
82,  i». 

after  recovery  in,   tenant  may  bring    action    for  mesne 
profits  against  co-tenant,  82,  '^^. 

who  made  defendant,  80,  ^",  et  seq. 

when  jierson  cannot  insist  on  being  made  defendant  in, 
104,  1'. 

when  defendants  may  be  joined  in,  98,  '^^. 

effect  of  death  of  defendant,  78,  ^^. 

defense,  defendant  entitled  to,  9,  ^'. 

all  persons  in  possession  of  the  demised  premises  may  be 
made  defendants,  82,  1^. 

defendant  must  have  been  in  possession  of  some  part  of 
premises,  9,  ''^^. 

when  inti^rvention  not  proper  in,  109,  ^". 

who  may  not  intervene,  110,  21, 

wife'«  land,  when  suit  against  husband,  69,  2",  et  seq. 

against  husband  and  wife,  lands  claimed  by  Avife,  death  of 
former  pending  appeal,  effect,  69, 21. 

against  wife  for  lands  claimed  as  separate  propertv,  sued 
alone,  69,  22, 

occupant  of  lands  should  be  party  to,  26,  ^^,  et  seq. 

when  occupant  of  lands  not  necessary  i^arty  to  suit  of,  26,  '^^. 

necessary  parties  to  action  of,  26,  ^=^  et  seq. 


395  I>-DEX. 

Ejectment —  Continued. 

equitable  defense  necessary  parties,  "when  heirs  of  common 

grantor  not,  26,  »^. 
when  interest  of  j)erson  only  collateral,  not  necessary  party, 

23,  5T. 
to  recover  husband's  interest  in  wife's  land,  necessary  par- 
ties, 26,  s*. 
plaintiff  may  declare  against  all  persons  in  possession,  80,  ^*. 
former  owner  maintaining  against  several  purchasers  of 

parcels  of  same  lot.  will  not  be  enjoined  by  them  in 

prosecution  of,  96,  ^'^. 
jyeiidente  lite  purchasers  bound  by  decree,  7,  ^*. 
amount  of  recovery,  80,  ^5. 

recovery  need  not  be  amount  of  land  sued  for,  9,  ^5. 
revivor,  survival,  etc.,  76. 
question  as  to  title,  33,  '^'^. 
plaintiff  must  show  title,  9,  ^i. 

plaintiff  must  recover  on  strength  of  own  title,  9,  ^•*. 
title  deeds  lost,  plaintiff  may  maintain,  9,  •*". 
title  deraigned  from  common  grantor  sufficient,  9,  ^*-3**. 
Elect;  parson  attempts  to  pursue  two  remedies  for  same  wrong 

at  same  time,  on  motion  must,  9,  •". 
Election,  officers,  necessary  parties  to  suit  to  restrain  city  fi'om 

paying  expenses  of  naunicipal  election.  28,  P. 
illegal,  of  de  facto  officers  of  a  corporation,  no  defense  to 

action  by,  90,  i". 
quo  u'arrdnto  to  test  validity  of,  how  brought,  39,  '•'. 
Employment,  when  both  master  and  servant  liable  for  acts  of 

servant  in  course  of,  83,  ^^. 
servant  discharged  for  cause  must  endeavor  to  obtain,  83,  =^^. 
Encumbrance,  contribution  for  removal  of  by  co-tenant,  82.  *". 
Encumbrancers,  proper  parties  to  foreclosure  suit,  either  prior 

or  subsequent,  27,  *',  et  seq. 
of  land,  not  necessary  parties  to  suit  for  partition,  28.  -*. 
proper  parties  to  suit  to  enforce  vendor's  lien  upon  lands, 

27,  1". 
Escape,  insecure  jail  no  defense  to  action  against  sheriff'  for, 

51.  1". 
Estate  of  bankrupt,  assignee  must  sue  upon  all  demands  due, 

3i,  -1,  d  ^eq. 
when  assignee  of,  may  not  sue  for  trust  funds,  34,  ^. 
when  foreign  assignee  cannot  sue  for  property  of  estate, 

34,  -^K 
denumds  due,   creditor  cannot  sue  upon  though  assignee 

fails  to  do  so  for  two  years,  34,  -'^. 
Estate  of  dec3dent.    See  Administator  ;  ExEcrroR ;  Aninx- 

ISTRATOR   OR   EXECUTOR ;    PERSONAL,   KepRESENTATIVE. 

who  must  bring  actions  to  recover  property  of,  72,  ^ 


IXDEX.  33G 

Estate  of  Decedent— Coi^timied.    -      ' 

^vlleu  administrator  not  liable  to  pay  judgment  against, 

72,  '''. 
wlien   property  of,  misappropriated  by  executor  may  be 

recovered  by  administrator  de  bonis  non,  72,  '^•^. 
attorney  in  fact  of  executor  cannot  sue  for,  8i,  ^'^, 
claims  due,  72. 
executor  or  administrator  is  full  representative  of  creditors 

in  litigating  claims,  71,  ■*. 
claims  against,  75. 
no  suit  lies  against  administrator  until  claim  presented, 

75. 
equitable  suit  against  to  recover  claims,  who  made  parties, 

22,  •*. 
bill  to  reach  assets  of  estate  when  representative  of  deceased 

co-executor  need  not  be  joined  ■with  executor,  22,  ■*''. 
suit  to  subject  assets  devised  to  payment  of  debts,  22,  ^3. 
suit  against,  to  enforce  contract  to  convey  lands,  Avho  joined 

as  defendants,  78,  ^**. 
■when  distributee  may  bring  action  on  bond  of  former 

administrator  to  recover  distributive  share,  78,  ^. 
heirs  not  liable  for  commissions  of  administrator,  72,  '^^. 
suit  against,  -n-hen  heirs  necessary  parties,  22,  ^^  et  seq. 
■v\iien  heirs  may  be  sued  alone,  22,  ^i,  et  seq. 
legatee  paying  claim  cannot  recover  of  executor,  75. 
minor  cannot  administer  upon,  56,  ^. 
■v\-hen  rent  of  lands  is  assets  of,  7.3. 
upon  death  of  co-partner  sur^vdvor  mav  settle  affairs  cf  the 

firm,  72,  -». 
bill  for  tinal  settlement  of,  necessary  parties,  ■who  are,  22,  ^^. 
Estate  insolvent,  when  administrator  may  enjoin  tenant  from 

suljletting  leased  j^remises,  73. 
suits  relating  to,  necessary  party,  24,  '^'^.  et  seq. 
Exception,  to  rule  for  making  parties  to  suit  in  equity,  19,  i. 
to  rule  for  making  parties  to  suits  in  equity  in  federal 

courts,  19,  ',  et  seq. 
to  rule  as  to  parties,  suit  against  trustees  for  fraudulent 

breach  of  trust,  33,  \ 
to  rule  that  no  action  lies  to  private  person  for  injury 

from  public  nuisance,  30,  i",  et  seq. 
to  rule  that  rights  of  person  ■nill  not  be  determined  in 

suit  to  which  he  is  not  party,  28,  ^a. 
Execution,  death  of  one  of  two  or  more  plaintiffs  or  elefendants 

within  a  year  after  judgment,  how  issued,  105,  '. 
sale  of  lands,  suit  to  set  aside,  debtor  may  be  made  party 

to,  how,  5,  1^. 
sale  of  lands,  stranger  may  not  be  made  party  to  suit  to 

quiet  title  for  purpose  of  "^attacking  sale,  5,  ^*. 


337  INEEX, 

Execution —  Continued. 

ut  law,   when  debtor's  property  cannot   be  reached    by, 
creditor  may  apply  to  t(piity,  30.  '^'^. 

property  exempt,  damages  for  seizure  rccovtrtd  either  by 
husband  and  wile  or  husband  alone,  G3,  ". 

sale  of  property  of  stranger  tj  writ,  she  rift'  liable  individu- 
ally, 51,  11. 

sale,  purchaser  liable  to  officer  for  breach  of  contract,  36,  -^. 

in  hau'ds  of  sheriff,  when  latter  not  necessary  party  to  bill 
to  enjoin  judgmtnt,  28,  *-. 

sale  by  sheriff  under  several,  creditors  may  be  compclkd 
to  interplead,  51,  '. 

creditor,  money  overpaid  to,  sheriff  may  recover  back.  51,  ". 

money  collected  by  sheriff  upon,  no  action  for  until  de- 
mand, 51,  2'^. 

sale,  sheriff  may  sue  for  price  of  property  sold  at,  51,  '^. 

unsatisfied  against  deputy  sheriff,  no  action  agai:.st  sheriff, 
51,  11. 
Executor,  joint,  when  may  sue  for  assets,  77. 

joint,  bill  for  account  may  be  maintained  between,  77. 

attorney  in  fact  of,  cannot  sue  for  bencf't  of  estate,  84,  ij. 

bond  of,  when  action  upon  brought  in  name  of  probate 
judge,  49,  ^. 

may  commence  action  in  official  capacity  before  probate  of 
will,  71,  1. 

when  liable  in  official  capacity  on  contracts,  71. 

when  may  be  sued  in  two  capacities,  71. 

after  creditor's  bill  tiled  against,  individual  creditor  not 
permitted  to  pursue  at  law,  77. 

de  soil  tort,  who  is,  75. 

de  son  tort,  when  no  action  against  husband  as,  for  act.5  of 
wife,  70,  ^ 

what  acts  of,  amount  to  devastavit,  7G. 

death  of  co-defei.dant,  in  action  for  destruction  of  chattel 
action  proceeds  against,  or  survivor,  98,  '. 

of  daceased  defendant  on  joint  contract,  reached  only  by 
new  suit,  107,  n,  el  scq. 

action  for  misfeasance  or  nonfeasance  of  a  defendant  can- 
not be  revived  against  his,  107,  -j. 

joint,  who  refuses  to  join  as  plaintiff  ir.'operly  made  defend- 
ant, 71,  1-. 

when  may  bo  joined  as  defendant  in  equity  with  surviving 
l^artner,  7-4. 

when  cannot  be  substituted  as  party  defendant,  lOG.  -^. 

cf  deceased  surety,  when  he  may  not  be  substituted  as 
defendant,  107,  i«. 

defendant,  death  of  one,  suit  proceed;  against  survivor, 
107,  «,  et  seq. 

Paktiks  — 34 


INDEX.  398 

Executor  —  Continued, 

whtii  may  maintain  ejectment,  73. 

at  instance  of,  when  devisee  may  bring  ejectment  on  -u-ill, 
78,  =^^. 

foreign,  when  action  lies  against,  74. 

foreign,  generally  may  not  be  sued  in  local  coiirts,  74. 

foreign,  whether  can  be  sued,  question  of  judicial  discre- 
tion rather  than  of  jui'isdiction,  74. 

of  insolvent  estate,  may  sue  to  set  aside  fraudulent  convey- 
ance of  lands  by  decedent,  73. 

joint,  who  to  join  in  suit  on  behalf  of  the  estate,  71,  ^. 

suit  to  quiet  title  to  lands,  when  need  not  be  party  to, 
20,  5». 

suit  on  lease  made  by,  73. 

when  may  compel  legatees  to  interplead,  113,  ^". 

cannot  sue  for  1  gacy  charged  upon  land  alter  estate  has 
been  settled  without  joining  legatees  as  co-complainants, 
73,  ^K 

joint,  liability  for  assets,  77. 

Avhen  not  liable  for  assets  received  by  co-executor,  77. 

when  liable  individually  on  contracts,  74. 

personally  liable  when  carrying  on  business  of  deced- 
ent, 75. 

not  liable  to  the  legatee  for  elebts  paiel  by,  7o. 

when  not  liable  for  penalty  for  failure  to  discharge  mort- 
gage of  record,  75. 

of  eleceaseel  complainant  when  not  necessary  party  to  bill  of 
revivor,  22,  ^^. 

of  deceased  mortgagor,  necessary  party  to  suit  to  recover 
mortgageel  premises,  22,  i". 

suit  against  to  recover  trust  funds,  when  legatee  not  neces- 
sary narty,  22,  2». 

sale  of  land,  when  joinder  of  plaintiffs  in  suit  to  restrain 
improper,  9G,  ^^. 

replevin,  death  of  plaintiff,  action  reviveel  in  favor  of,  1G7,  "'. 

action  for  damages  for  injury  from  act  or  default  of  de- 
fendant, death  of  plaintiff  revived  by  his,  107,  ^^. 

firm  property,  surviving  partner  cannot  recover  from, 
when,  74. 

of  deceased  j)artner  never  joined  as  defendant  with  survivor 
in  action  to  recover  debt  from  partnership,  74. 

firm  debt,  if  both  partners  be  dead  their  executors  cannct 
be  joined  as  defendants  in  suit  to  recover,  74. 

of  deceas' d  partner,  when  may  be  joined  with  survivor  as 
defendant  in  action  on  firm  debt,  89,  ^i,  et  secj. 

suit  against  by  receiver  of  estate,  what  judgment  should  be 
made,  77. 

of  sheriff  not  liable  for  misfeasance  of  latter,  51,  '■'^ 


i 


399  INDEX. 

Executor —  Continued. 

death  of  trustee  ponding  suit,  revived  in  name  of,  32,  '^\. 
joint  on  death  of  one,  trust  survives  to  the  others,  71.  ^^. 
of  deceased  trustee  of  corporation,  action  for  p(nalty  for 

not  filing  report  did  not  survive  against,  107,  ^^. 
of  deceased  trustee,  application  for  appointment  of  new 

trustee,  necessary  parties.  23,  ^. 
surviving  may  maintain  bill  for  account  against  represen- 
tative of  co4xecutor,  77. 
of  survivor  of  joint  note,  may  sue  thereon,  88,  -j,  et  seg. 
never  joined  with  survivor  in  action  on  joint  note,  b8,  ■-•*. 
hoAV  sued  for  personal  tort,  7G. 

■when  tort  of  decedent  may  be  waived  and  assumpsit  main- 
tained against,  81,  ". 
when  mav  maintain  trespass  or  trover  for  property  of  the 

estate,  72,  i*^. 
when  executor  of  deceased  wrong-doer  may  be  sued  for 

trespass,  quare  clausian /regit,  7G. 
is  proper  person  to  conduct  the  litigation   of  caveat  on 

behalf  of  will  and  claimants  under  it,  71,  '■^. 
may  apply  to  court  of  equity  to  have  will  construed,  71,  2. 
effect  of  sale  of  land  undt  r  mistake  of  power  under  will,  73. 
Executrix,  if  married,   husband  properly  joined  in  suits  to 

recover  assets  of  estate,  22,  •». 
of  estate  of  decedent  wife  as,  may  be  sued  bv  husband, 

G7,  **. 
Exoneration,  of  suretv,  bill  of  surety  to  enforce,  who  joined  as 

plaintifEs,  2i,  ^K 
Equity,  abatement  of,  effect,  105,  ^. 

suit  in  does  not  abate  bv  death  of  co-plaintiff  or  defendant, 

107,  1'. 
prior  to   Code,  person   for  whose  benefit  a  contract  was 

made  could  sue  in,  37,  •*,  ot  seq. 
when  will  interfere  Avith  business  of  a  corporation,  C2,  &. 
who  properly  joined  as  defendants  in.  99. 
court  of,  when  will  not  retain  jurisdiction  of  suit  against 

defendants,  9,  ^". 
decree,  may  be  made  between  co-defendants  in,  9,  ^'. 
suit  by  assignee jipon  split  demand  necessary  parties.  31,  '^. 
wife  may  sue  alone  in,  but  husband  may  be  joined,  GG,  ^. 
wife  mav  sue  husband,  or  converse,  when,  G7,  -,  et  seq. 
when  husband  liable  for  money  supplied  wife  deserted  by 

husband,  G8,  ^^. 
separate  property  of  wife  reached  to  pav  anti-nuptial  debt, 

G8,  ». 
idiots  sue  by  guardian  or  committee,  Gl,  =,  rf  i^cq. 
infant  may  call  guai'dian  to  account  in,  57,  ^*',  ct  sfq. 
will  sanction  no  decree  by  default  against  an  infant,  CO,  -. 


I>T5EX.  400 

Equity —  Continued. 

Las  full  jurisdiction  over  estates  and  persons  of  infants. 
57,  ^\ 

court  of,  uill  set  aside  judgment  "by  default  against  lunatiC; 
when.  G2,  ^'. 

when  will  grant  relief  to  creditor  against  fraudulent  con- 
veyancti  of  debtor,  36,  *^  et  seq. 

Ti'lien  judgment  creditor  may  proceed  in  to  reach  property 
of  debtor,  3G,  2«,  et  seq. 

judgment  creditors,  how  may  proceed  in  to  reach  property 
of  debtor,  36,  ^=^,  (t  seq. 

when  will  permit  set-off  against  insolvent  joint  judgment 
creditor,  55,  ^. 

suits  relating  to  lands,  necessary  parties  to,  26,  ^ 

when  suit  for  legacy  must  be  brought  in,  77. 

relief  on  ground  of^nistake,  9,  ^",  el  seq. 

equitable  owner  of  notes  secured  by  mortgage,  proper  per- 
son to  foreclose,  .'!6,  '^^. 
■  who  should  be  made  parties  to  suit,  18,  ^,  et  seq. 

part  of  law  of  States,  rules  as  to  making  i^arties  adhered  to, 
9,  ^K 

rule  for  making  parties  in,  Avill  not  be  used  to  defeat  jus- 
tice, 19,  ». 

cx'-eption  to  general  rule  for  making  parties  to  suit,  19,  ^, 

formal  parlies,  misjoinder  or  non-joinder  of,  effect,  103,  i. 

who  mav  be  made  parties  in  suit  against  estate  of  decedent, 
22,  11/ 

of  red(  mption,  owner  of  must  be  partv  to  foreclosure  suit, 
27,  ^ 

if  all  interested  parties  are  before  the  court,  position  of, 
effect,  0,  ^. 

suit  on  contract,  may  be  ia  name  of  i^erson  beneficially 
interested,  31,  *^.        ' 

bill  in,  brought  in  name  of  real  party  in  interest,  2,  =. 

rule,  as  to  who  is  real  party  in  intei'est  adopted  bv  Code, 
31,'. 

assignee,  as  real  party  ia  interest  rray  sue  upon  non-ne- 
gotiable chose,  31,  ^r 

misjoinder  of  plaintiffs,  effect,  102,  «,  etseq. 

misjoinder  of  plamtiffs,  bill  dismissed,  objection  made  at 
hearing,  102.  ^^. 

non-joinder  of  parties  sufficient  excuse  for,  103,  ^^. 

non-joinder  of  indispensable  party,  effect,  103.  ^^  et  seq. 

when  answer  shows  non-joinder,  new  parties  should  be 
made,  lOi,  ^,  et  seq. 

action  in,  absence  of  loroper  parties  not  jurisdictional  de- 
fect, 7,  15,  (.f  seq. 

want  of  parties,  when  taken  advantage  of,  102,  '^^,  et  seq. 


401  IXDEX. 

Equity —  Continued. 

plaiutifif  in  suit  upon  contract  may  be  both  promisor  and 

promisee,  31,  ^^. 
same  person  may  be  both  plaintifif  and  defendant  in  same 

suit,  6,  1^,  et  seq. 
generally,  who  joined  as  plaintiff  in,  96,  i,  et  seq. 
joinder  of  plaintiffs  in,  saving  expense  not  sufficient  reason 

for,  96,  16. 
bill  in  by  partnership,  all  partners  should  be  parties,  54,  *. 
will  redress  rights,  when  otherwise  resort  must  be  made 

to  courts  of  another  State,  9,  i^. 
revival  of  suit  after  abatement  is  not  commencement  of 

new  action,  105,  ^. 
court  of  will  not  pass  upon  rights  of  parties  to  an  account, 

when,  9,  *2, 
suit  by  distributee  to  set  aside  settlement  of  administrator 

for  fraud,  parties,  78,  i". 
when  one  tax  payer  may  sue  for  self  and  all  others,  etc.,  to 

test  validity  of  law  to  raise  public  money,  30,  ^,  et  seq. 
title  deeds  lost,  plaintiff  not  obliged  to  "establish  before 

maintaining  ejectment,  9,  ^'^ 
proceeding,  survivor  and  representative  of  deceased  joint 

trustee,  when  joined  as  parties,  33,  *. 
will  not  lend  its  aid  to  a  party,  after  a  trial  at  law,  unless, 

9,  i«. 
when  executor  may  apply  to,  to  have  will  construed,  71,  2. 
rule  as  to  change  of  venue  of  suit  in,  9,  ". 
Equitabta  chose,  assignor  not  necessary  party  to  action  for  an 

account,  24.  ^. 
Error,  none  to  refuse  to  dismiss  bill  in  equity  for  non-joinder, 
when,  102,  ^*,  et  seq. 
petition  in,  who  may  prosecute,  108,  *. 
writ  of,  death  of  plaintiff  after  judgment,  administrator 
may  sne  out,  71,  '^^. 
Factor,  when  may  sue  for  purchase  price  of  goods  sold,  84,  ". 
Facts,  dtmurrer  tor  want  of.  will  not  reach  objection  that  sur- 
name of  defendant  only  is  set  out  in  complaint.  3,  '^. 
Failure  of  justice,  courts  will  adopt  chancerv  rules  to  prevent 

when.  9.  ^K 
False  return,  plaintiffs  may  join  in  action  for,  95,  ^. 
Family,  supplies.    See  Supplies  F-ohly. 

meelicai  services  rendered,  husband  liable  fe)r.  68.  ^^  et  seq. 
medical  services  rendered,  wife  mav  become   liable    for, 

68,  23. 
necessaries  furnished,  as  rule  husband  liable,  68,  ^^,  et  seq. 
wife  dangerous  woman,  no  defense  to  action  for  supplies, 

68,  28. 
general  expenses  of  wife,  husband  liable  for,  68,  '-*. 


INDEX.  402 

Father,  relinqinshnient  of  right  to  wages  of  infant  may  be 

inferred,  56,  ^ 
Federal  court,  alien  sued  in  State  court  may  remove  suit  to, 
29,  ^". 
when  assignee  of  bankrupt  may  not  proceed  in,  to  recover 

attached  property  in,  53,  ^'^. 
suit  in,  by  corporation,  citizenship  of  members  of,  10,  *. 
foreign  corporation  may  sue  in,  although  prohibited  by 

law  of  State,  8,  ^. 
when  will  not  enjoin  public  officer  from  canceling  license 

of  foreign  corporation,  47,  ^^. 
joint  stock  company,  when  may  sue  in,  same  as  in  State 

court,  8,  5. 
jurisdiction  of,  action  not  arising  from  contract,  8,  *. 
determining  rights  of  parties  under  State  law,  follow  State 

court,  8,  ^. 
exceptions  to  rule  for  making  parties  to  suit  in  equity  in, 

19,  ^  et  soq. 
when  will  not  entertain  suit,  citizen  of  parties  not  being 

shown,  10,  *>. 
proof  of  citizenship,  when  jurisdiction  depends  upon  par- 
ties, 10,  ^ 
plaintiff,  when  must  replead  on  removal  of  cause  to,  9,  '^'^. 
action  in,  against  executive  officers  of  State  prohibited,  40,  ^^. 
foreign  sovereign  may  sue  either  in  State  or,  29,  ^. 
Fees,  for  making  sale  of  land  at  delinquent  tax  sale,  when  due, 

50,3. 
Felons,  when  no  action  against  sheriff  for  imprisoning  debtor 

with,  51,  i«. 
Feme  sole,  wife  deserted  by  husband,  when  may  sue  in  own 
name  as,  63,  i^,  et  seq. 
wife  may  by  statute  sue  as,  68,  i^,  et  seq. 
statute,  wife  may  recover  for  injuries  to  person  or  charac- 
ter as  though,*  65,  ^". 
Fiction,  tipon  which  action  for  seduction  is  based,  83,  ^",  et  seq. 
•Final  settlement,  proceeding  to  set  aside  and  subject  lands  ol 

decedent  to  payment  of  debts,  necessary  j^arties,  2,  ^^ 
Finder,  of  lost  property,  who  entitled  to  custody,  87,  ^'^,  et  seq. 
Fines,  collected  by  officer  and  not  paid  over,  State  may  sue 

for,  39,  i<. 
Fire  marshal,  bill  to  restrain  city  from  paving  for  services, 

must  be  party,  28,  ^'•^. 
Firm  assets,  persons  who  have  obtained  by  fraud  are  necessary 
parties  to  bill  against  partnership  for  an  accoun^,  24,  i". 
Fish,  town  under  statute  may  sue,  for  price  of  right  to,  in  its 

streams,  45,  *3. 
Force,  when  both  master  and  servant  liable  for  unlawful  use 
of,  83,  1^ 


403  rNTJEX. 

Forcible  entry  and  detainer,  when  administrator  niav  main* 
tain,  73. 
acrainst  wife  when  husband  made  party,  G9,  '■^'•^. 
oreclosure,  of  mortgage,  see  Mortgage.' 
suit,  who  may  not  intervene  in,  110,  -'-. 
suit  of,  administrator  may  maintain,  73. 
suit  against  defunct  corporation,  when   stockholder  mav 

defend,  93,  ». 
decree  of,  who  not  permitted  to  open,  5,  i'. 
suits  upon  homestead  property,  husband  and  wife  parties, 

66,  *«. 
upon  homestead,  wife  may  intervene  in,  110,  '^. 
of  land  contract,  requisites  for  injunction,  9,  •*". 
of  mtchanic's  lien,  owner  of  premises  onh'  defendant, 

27,  1^ 
of  mortgage,  nature  of  suit,  7,  ^^ 

suit,  when  error  to  decide  upon  the  validity  of  the  mort- 
gage in,  8,  ^1. 
of  mortgage,  necessaiy  parties  to.  27,  i",  et  seq. 
suit  of,  mortgagor  i^roperly  made  party  to,  except,  7,  -^ 
suit,  who  may  not  be  made  parties  to.  o,  *. 
suit  of  plaintiff  may  abandon  security  and  take  judgment 

on  note,  8,  *"^. 
same  person  may  be  plaintiff  aud  defendant  in  si; it  for,  6,  ^^. 
suit,  when  pendente  lite  purchaser  may  be  made  party  to, 

5,  ^,  et  S(q. 
suit,  purchaser  of  mortgaged  premises,  when  need  not  be 

party  to,  7,  '■^'^,  et  seq. 
title  bond,  when  assignee  of  note  may  maintain.  35,  ^^. 
of  trust,  mortgage,  trustee  may  sue  alone,  32,  ^^. 
decree  of,  when  wife  may  not  prosecute  writ  of  error  to 
revers  •.  69,  i". 
Foreign  administrator.    See  ADMr^^sTEAT0B  Foreigx. 
Foreign  ambassador,  when  may  sue  in  our  courts,  29,  ^. 
Foreign  corporation,    See  Corporation  Foreigx.  » 
Foreign  law,  l-'W  enforced.  9,  ^^. 
Foreign  republic,  when  may  sue.  39.  ^. 
Foreign  sovereign,  mav  sue  in  either  State  or  federal  courts. 

29,  1. 
Form,  of  special  appearance,  what  is  sufficient,  li.  ^''. 
Forthcoming  bond,  when  no  action  hes  against  officer  for  fail- 
ure to  take  in  trover,  51,  •**. 
Fraud,  generally  mere  agent  not  necessary  party  to  suit  unless 
charged  with.  24.  ^o. 
charged,  no  relief  in  suit  unless  proved.  9.  ^^,  et  stq. 
attachment  suit,  richt  of  inttrvenor,  111,  ^*. 
one  who  has  repudiated  contract  for,  may  sue  wroug-doer, 


INDEX.  404 

Fraud —  Continued. 

grantees  should  be  parties  to  suit  to  set  aside  conveyance. 

whether  charged  or  not,  26,  ^e. 
etc.,  of  officer  of  corporation,  when  court  will  not  interfere. 

91,  -^'. 
of  creditors,  conveyance  in,  relief  when  granted  in  equity. 

36,  ■*!,  el  seq. 
convevance  set  aside  for,  when  creditor  not  entitled  tc 

have,  8,  •■^«. 
on  composition  creditors,  when  money  paid  on  note  in. 

may  not  be  recovered,  34,  ^♦'. 
Avhen  creditor  may   attack  in   State  court,   discharge  ol 

bankrupt,  on  ground  of,  54,  ^'. 
defendant  brought  into  jurisdiction  by  means  of  service  ol 

bad  process  upon,  11,  ». 
compromise  of  right  of  infant,   confirmed  bv  court,  set 

aside  for,  60,  *. 
of  right  of  infants,  errors  by  guardian,  equity  will  investi- 
gate, 57,  ^^. 
of  infants,  liable  same  as  adult,  59,  ^. 
all  distributees  must  be  parties  to  suit  in  equity  to  set  aside 

settlement  of  administrator  on  ground  of,  78,  J", 
of  husband,  wife  not  liable  for  unless,  70,  ^^  et  seq. 
changes  liability  of  husband  and  wife  for  tort  of  latter, 

70,4. 
charged,  in  obtaining  judgment,  bill  to  restrain  enforce- 
ment of,  necessary  parties,  28,  ■*=,  et  seq. 
in  obtaining  mortgage,  mortgagor  cannot  sue  receiver  to 

set  aside,  remedy,  52,  ^^ 
persons  obtained  firm  atsets  by,  necessary  parties  to  bill  of 

partnership  for  account,  24.'^". 
when  plaintiff  may  join  in  action  to  cancel  note  and  mort- 
gage for,  96,  11. 
of  stranger,  when  no  relief  for,  9,  i". 
and  collusion,  person  cliarged  with,  when  proper  -pnYty  to 

suit  to  set  asid^  will,  22,  '^. 
Fraudulent,  acts,  when  defendants  properly  joined  in  suit  to 

set  aside,  98,  ^'^,  et  seq. 
conveyance,  assignee  of  bankrupt  may  sue  to  set  aside,  53.  ^. 
conveyance,  suit  to  set  aside  necessary  party,  26,  '-^^  24,  ^^. 
conveyance  of  husband  and  wife,  suit  to  set  aside,  she 

should  be  party,  69,  ^^. 
grantees  necessary  parties  to  suit  to  subject  lands  of  debtor 

to  payme  nt  of  his  debts,  26,  *». 
representations,  when  assignee  mav  recover  money  advanced 

for  assignment  of  demand,  34,  i'. 
representations,  when  all  part  owners  of  chattel  liabls  for 

in  sale  of,  81,  '•'«. 


405  ^'^^^^ 

Fraudulent  —  Continued. 

breach  of  trust,  suit  for  exception  to  rule  that  all  trustees 

must  be  parties,  §  33,  ^ 
when  joint  owners  of  vessel  need  not  all  unite  in  action  to 
recover,  81,  ^^. 
Freight,  joint  owners  should  unite  in  action  for,  81,  ",  ^. 
Funds,  in  hands  of  third  person,  suit  by  creditor  to  reach, 
necessary  party,  21,  6. 
city,  necessary  party  to  suit  to  restrain  illegal  use  of, 
28.  ^i>. 
Garnishee,  process,  person  improperly  injured  bv,  mav  recover 
when,  38,  i'. 
proceeding  against,  to  compel  payment  of  money  to  judg- 
ment creditor,  pi'oper  party,  24,"^  ■'^. 
Georgia,  county  can  only  sue  in  its  own  name  in,  41,  ^. 

county  must  be  sued  in  corporate  name,  42,  ^. 
Goods,  when  bailee  guilty  of  conversion  of,  87,  '^^. 

delivered  to  common  carrier  for  transportation,  who  may 

sue  for  injury  to,  87,  ^,  et  seq. 
consigned,  time  of  liability  of  common  carrier  as  such  for, 

87,  »,  et  seq. 

consigned,  who  may  sue  common  carrier  for  loss  of,  87.  ^. 
when  consignor  may  intervene  in  suit  for  detention,  110,  ^^. 
sold  by  husband  to  wife,  when  latter  may  not  maintain 

replevin  for,  65,  ''. 
equitably  property  of  wife,  when  husband  mav  sue  as  her 

trustee,  06,  K 
when  lost  by  fraudulent  acts  of  a  person  an  action  will  lie, 

88,  «. 

sold  and  delivered,  action  for  price  against  grantor,  neces- 
sary party,  24,  ■'^. 

stock  of,  entrusted  to  care  of  receiver,  liability  for,  52,  -**. 

attached,  sheriff  may  sue  when  taken  from  his  possession, 
51,  6. 

when  joint  action  to  recover,  will  lie  against  attaching 
creditor  and  officer,  98,  ^-^  et  seq. 

who  may  sue  for  trespass  de  bonis,  etc,  38,  ^. 
Government,  cannot  be  sued  without  its  consent,  40,  '.,  et  seq. 
Governor,  when  may  prosecute  an  appeal,  48,  ^ 

right  to  sue  the,  is  matter  of  favor,  40.  **. 

not  responsible  to  judicial  department  for  performance  of 
duties,  48,  2. 
Grantee,  fraudulent,  suit  to  cancel  conveyance  to,  necessary 
parties,  26,  ^^. 

frauduk^nt,  necessary  parties  to  suit  to  subject  lands  of 
debtor  to  payment'of  his  debts,  26,  *'^. 

of  lands  by  verbal  contract,  when  necessary  i^arty  to  cred- 
itor's bill  against  grantor,  24,  -^. 


IXDEX.  40G 

Grant  36  —  Continued. 

portion  of  land  sold  by,  suit  to  correct  misdescription  in 
deed,  necessary  parties,  ^  26,  '^^, 

should  be  parties  to  suit  to  set  aside  a  conveyance,  26,  '^^. 
Grantor,  should  be  party  to  set  aside  conveyance  fraudulent 
as  to  creditors,  26, '^i,  et  seq. 

common,  in  action  of  ejectment,  title  dcraigncd  from  suffi- 
cient, 9,  '^K 

misdescription  in  deeds  of  several  prior,  suit  to  correct, 
necessary  parties,  26,  ^'*,  et  aeq, 

of  lands,  when  is  not  proper  party  to  suit  to  correct  mis- 
take in  conveyance,  26,  '^'^. 

of  trust  deed,  suit  to  adjust  ( quities  between,  debt  paid  by 
one,  necessary  parties,  23,  ^'. 

suit  to  !set  aside  deed  of,  since  deceased,  for  benefit  of  wife 
to  trustee  latter  must  be  party,  ^^,  ^. 
Grass,  when  one  co-tenant  may  recover  for  that  sold  from  the 

common  i^roperty,  82,  ^^. 
Guaranto:",  goods  sold  and  delivered,  action  against,  necessary 
party,  24,  ***. 

mav  be  sued  jointly  with  other  persons  liable  upon  note, 
97,  23,  et  seq. 

when  may  be  joined  as  defendant,  07,  ^. 

when  may  be  joined  in  action  against  principal,  88,  ^^. 
Guarantee,  what  is  sufficient,  97,  ^. 
Guardian.     See  Committee. 

not  liable  for  debt  of  ward,  57,  "^K 

no  joint  action  upon  debt  of  ward  against  both  jointly,  59,  *>. 

when  liable  to  physician  for  services  rendered  slave  of 
ward,  59,  ^ 

suit  against,  by  ward  for  an  account,  necessary  parties,  24, 
',  et  seq. 

may  be  sued  alone  upon  contract  for  board  and  clothes  of 
ward,  21,  i-^. 

sureties  of  not  liable  for  note   given   for  board  of  ward, 
86,  3-^. 

surety  of,  when  bill  for  account  will  lie  against  alone,  £6,^". 

when  joint  suit  will  lie  against  sureties  and  for  an  account, 
86,  31. 

of  infant  cannot  enter  appearance  for  time,  15,  '-. 

when  infant  appears  bv,  pleading  should  show  due  appoint- 
ment, 56,  2a,  58,  11.    ^ 

right  of  infant  to  call  to  account,  57,  i^  et  seq. 

action  against,  for  an  account,  by  infant  ward,  necessary 
parties,  21 ,  **,  et  seq. 

action  by  infant  upon  bond  of,  how  prosecuted,  57,  22. 

former,   action  by    infant  against,   upon    bond    of,   how 
brought,  57,  -'i. 


407  I^'DEX. 

Guardian  —  Continued. 

infant  defends  by,  ?  58,  '^. 

errors  of  in  fraud  of  rights  of  infants,  equity  will  inspect, 

57,  ^\ 
estate  of  deceased,  when  infant  heir  of  ward  may  pursue 

her  claim  against,  5G,  =*. 
jud.?ment  should  bo  entered  against  infant,  not  against, 

GO,  \ 
of  i- if  ant.  personal  property,  may  sue  in  own  name  when, 

57,  <*,  et  seq. 
of  infant  may  not  sue  for  lands  of  infant  in  own  name, 

57,  \ 
right  of  infant  should  be  enforced  in  his  name  by  his,  or, 

56,  ^  et  seq. 
suit  in  equity  to  enforce  right  of  infant  should  be  in  his 

name,  5G,  ^. 
infant  may  sue  bv  next  friend,  although  he  has,  56,  i". 
infant  plaintiff  becomes  of  age  pending  action  joined  as 

party  with,  improper,  57,  ^. 
of  infants,  necessary  party  to  suits  affecting  property  of 

latter,  21,  s. 
infant  brings  suit  for  partition  by,  57,  J^,  et  seq. 
of  infant  cannot  waive  service  of  process  upon  infant,  58.  ^. 
in  socage  of  infant  has  control  over  lands  of  infant,  may  sue 

to  recover,  etc.,  57,  ^. 
settlement  of,  with  infant.  57.  ^^,  et  seq. 
trespasses  of,  infant  not  liable  for,  59  ^^. 
when  will  not  bo  held  as  trustee  of  lands  purchased  with 

funds  of  infant,  57,  2". 
appeal's  for  insane  person  or  idiot,  15.  "•',  62,  -. 
court  may  appoint  by  ex  parte  order  for  insane  defendant, 

62,  *. 
of  insane  person  not  liable  to  attorney  for  services  in  pro- 
ceedings in  lunacy,  62,  ^'^. 
of  insane  infant  makes  defcnpe  for,  62.  ". 
application  to  sell  lands  of  insane  person,  jurisdiction  of 

court,  13,  «. 
of  insane  person,  monev  received  by,  when  no  action  lies 

against  latter  for.  62,'  ^K 
of  insane  person,  when  action  brought  in  name  of,  Gl,  ^. 
name  of.  omitted  in  suit  by  insane  person,  matter  of  abate- 
ment. 61,  i". 
insane  person  sues  by,  in  equity,  61,  °. 
better  practice  for  insane  person  to  sue  by,  Gl,  '^. 
of  insane  person,  no  action  against  ward  until  settlement 

of  account,  62.  '■*. 
Guardian  ad  litem,  difference  between,  and  next  friend,  56,  ««". 
when  proceedings  in  insolvency  without,  void,  60,  ^. 


INDEX,  403 

Guardian  ad  litem  — Coyitiiiued. 

attorney  foi'  non-resident  defendant,  who  became  pending 
litigation  appointed,  ^  11,  ^. 

when  court  may  appoint  for  insane  defendant,  62,  *,  et  seq. 

when  infant  appears  by,  56,  2^,  et  seq. 

infant  insane  person,  appears  in  action  bv,  not  by  attorney, 
15,^,  et  seq. 

appointment  of,  for  infant,  should  appear  of  record,  58,  ^°. 

aiithoriry  of  court  as  to  appointment  of,  for  infant  defend- 
ant, 58,  ^^,  et  seq. 

for  infant  defendant,  court  may  appoint  new  one  on  appeal, 
58,  18. 

order  appointing  for  infant  defendants,  when  void,  58,  ^^. 

cannot  be  appointed  for  infant  defendant  until  served  with 
process,  58,  **. 

effect  of  omission  to  appoint  for  infant  defendant,  CO,  ^. 

for  infant  defendant,   when  motion   for  appointment  of 
made  by  plaintiff,  58,  i5. 

cannot  bind  rights  of  infant  by  submission  to  arbitration, 
58,  ^6,  et  seq. 

infant  defends  by,  58,  *. 

defends  for  infant  not  served  with  process,  judgment  void, 
11,  1'. 

for  infant  defendant,  is  not  liable  for  costs,  58,  ^i. 

for  infant  defendant,  only  duty  is  to  defend,  58,  '^'^,  et  seq. 

for  infant,  who  may  be,  58,  i'.' 

infant  must  have  in  suit,  if   interests  of  guai-dian  are 
advei'se,  58,  i*. 

if  infant  has  no  general  guardian  he  must  have,  to  defend, 
58,  1^. 

of  infant  defendant,  not  a  party  to  the  action,  58,  20,  et  seq. 

mav  not  admit  away  rightte  of  infant  defendant,  58,  2+ 
60,  3. 

for  infant  defendant,  cannot  waive  any  of  his  rights,  58,  22. 

time  to  file  dilatorj^  pleas  by  infant  defendant  commences 
to  run  from  time  of  appointment  of,  58,  20. 

may  not  waive  service  of  process  upon  infant  defendant, 
58,  '. 

or  next  friend,  infant  wife  sues  by,  56,  '=*. 
Hearing,  amendment  of  pleading  asked  for  first  time  at,  allow- 
ance discretionary,  102,  12. 

misjoinder  of  pl-intiffs,  generally  objection  for  cannot  be 
raised  at,  102,  i". 

wben  objection  for  want  of  parties  may  be  made  at  final, 
102,  26. 
Heirs,  actions  by  or  against,  generally,  78. 

right  of  recovery  against  former  administrator  for  devas- 
tavit, 77. 


103  INDEX. 

Heirs —  Contimied. 

■when  mav  sue  administrator  for  rent  of  lands  of  decedent, 
I  78,  '^\  21. 

when  bill  for  an  account  will  lie  against  administrator  and, 
77. 

not  liable  for  commissions  of  administrator,  72,  2«. 

■svlien  may  be  sued  without  joining  the  administrator, 
22,  21. 

proper  parties  to  suit  of  administrator  de  honis  non  to  sub- 
ject lands  sold  by  former  administrator  to  payment  of 
the  purchase  price,  26,  ^^. 

placed  in  possession  after  administration  closed,  creditor 
cannot  enforce  claim,  75. 

when  should  be  parties  to  set  aside  conveyance,  26,  ^,  etseq. 

when  chargeable  as  assigns,  on  covenant'of  ancestor,  78,  -*. 

death  of  defendant  in  pending  action  of  ejectment,  effect 
upon,  7S.  ^*. 

death  of  defendant  in  real  action,  new  cause  of  action 
against,  105,  ■*, 

of  judgment  debtor,  bill  to  reach  property  in  hands  of, 
necessary  party,  2-i,  ^i, 

of  debtor,  when  not  necessary-  party  to  suit  to  reach  prop- 
erty fraudulently  conveyed' by,  24,  '^^. 

when  may  defend  pending  action,  75. 

when  must  be  made  party  defendant  to  bill  by  devisee  to 
revive  suit,  78,  ^^. 

of  intestate  cannot  bring  action  upon  a  claim  due  the 
estate  78,  i. 

exception  to  the  rule,  78,  ^ 

generally  cannot  bring  action  to  recover  property  of  deced- 
ent, for  the  estate,  72,  -. 

exception,  72,  ■*,  *. 

as  rule  not  necessary  paiiies  to  suit  against  estate  of 
decedent,  22,  i^. 

of  deceased  partner  not  necessaiy  parties  to  suit  for  account 
of  personal  assets,  22,  •*5,  et  seq. 

when  may  maintain  ejectment  in  own  name,  78.  ^i. 

when  may  maintain  ejectment  against  administrator,  76. 

of  common  grantor,  when  not  necessary  parties  in  equita- 
ble defense  to  action  of  ejectment,  26*  =•*. 

infant,  when  allowed  to  pursue  claim  of  deceased  mother 
against  estate  of  deceased  guardian,  56,  2. 

of  former  guardian  not  necessary  parties  to  bill  against 
executor,  21.  ^^. 

of  deceased  gratitor,  when  necessary  party  to  suit  to  cor- 
rect misdescription  in  deed.  26,  '^. 

when  mav  recover  damages  for  homicide  of  their  parent, 
78,  «.     ' 

Partiks  — .35 


INDEX.  410 

Heirs  —  Continued. 

known,  publication  of  summons  not  siTfficient  to  ^bring 

before  court,  §  13,  ^, 
when  not  necessary  parties  to  suits  relating  to  lands  of 

decedent,  22,  3". 
wlien  too  late  to  elect  as  to  the  real  property  of  the  estate,  73. 
when  may  sue  for  damages  for  land  taken  for  public  use, 

73. 
necessary  parties,  when  real  assets  sought  to  be  subjected 

to  payment  of  debts  of  estate,  22,  ^^. 
necessary  parties  to  suit  by  devisee  to  i-ecover  lands,  22,  ^^. 
when  necessary  parties  to  suit  to  recover  purchase  price  of 

lands  of  decedent,  22,  «,  27,  «. 
of  vendep,  parties  to  suit  to  enforce  lien  for  purchase  price 

of  land,  27,  7. 
when  he  may  treat  purchase  money  as  land  and  recover  as 

such  in  equity,  78,  2'. 
wlien  rent  of  lands  belongs  to,  73. 
of  vendor,  when  proper  parties  to  suit  to  enforce  contract 

for  sale  of  lands,  26,  ^. 
of  vendor,  contract  for  sale  of  lands,  suits  against  to  en- 
force, necessary  parties,  2G,  ^i,  et  seq. 
should  be  party  to  suit  to  enforce  contract  for  sale  of  land 

to  decedent,  73. 
necessaiy  parties  in  suit  to  enforce  land  contract  executed 

by  decedent,  22,  7. 
properly  joined  as  defendant   in  suit   against   estate  to 

enforce  contract  to  convey  lands,  78,  '^. 
of  deceased  partner,  proper  parties  to  suit  for  conveyance 

of  lands  by  person  claiming  from  fii-m,  25,  "•*,  et  seq. 
may  maintain  action  to  set  aside  tax  sale  of   lands  of 

intestate,  78,  ». 
necessary  parties  to  action  against  administrator  to  try 

title  to  lands,  22,  n. 
when  administrator  may  sue,  for  trespass  on  lands,  73. 
death  of  landlord  i^ending  action  to  recover  possession  of 

leased  premises,  suit  may  proceed  in  name  of,  79,  i". 
must  be  parties  to  suit  to  r(  cover  marital  portion,  22,  ^2, 
of  mortgagor  made  partj^  to  foreclosure  suit,  27,  ^'^,  et  seq. 
of  mortgagee,  not  necessary  party  complainant  in  fore- 
closure suit,  27,  ^*,  et  seq. 
when  may  sue  to  recover  for  breach  of  covenant  to  pay 

mortgage,  78,  23. 
of  deceased  obligors,  when  not  necessary  parties  to  bill  for 

account,  24,  **. 
necessary  parties  to  suit  of  partition,  28,  ^\ 
of  deceased  partner,  not  necessary  party  to  suit  for  account- 
ing of  partnership  affairs,  25,  ^'". 


411  INDEX. 

Heirs  —  Continued. 

may  petition  for  appointment  of  receiver  when  adminis- 
trator wasting  assets,  ^  75. 

when  may  be  parties  to  hill  to  redeem,  28,  ',  el  seq. 

revivor  in  name  of,  on  death  of  defendant  in  action  to  con- 
demn lands,  105,  ^'^. 

should  revive  action  for  specific  performance  of  contract  to 
convey  lands,  when  plaintiff  dies  pending  suit,  78,  ^^. 

IKfssessoiy  action  not  revived  against,  76. 

death  of  defendant,  no  administrator,  when  action  revived 
against,  105,  ^^ 

djath  of   partv  after  appeal,   no    administrator,   revived 
against,  108,  X 

of  deceased  husband,  when  should  be  made  parlies  to  suit 
by  wife  to  recover  her  separte  property,  21,  -^. 

of  deceased  joint  tenant,  when  joint  action  will  not  lie 
against  for  rents  collected,  82,  '^. 

when  mav  contest  the  execution  of  a  testamentarv  trust, 
78,  ".     ' 

of  deceased  joint  trustee,  not  necessary  party  to  suit  by 
survivor,  23,  8, 

of  deceased  trustee,  when   not  necessary'  parties  to  suit, 
23,  2T. 

of  deceased  cestui  qui  tnist,  when  necessary  party  to  suit  to 
recover  trust  property,  22,  ^•*. 

must  join  in  action  for  dcstruciion  of  title  deeds,  78,  ^. 

unknown,  sufficient  description  of,  4,  ^*. 

unknown,  jurisdiction  acquired  over  by  publication,  13.  '. 

infant  made  defendants  in  suit  by  widow  for  dower,  66.  =0. 

proper  partv  to  suit  by  widow  to  recover  dower,  interests 
in  lands,  26,  38. 

proper  party  to  suit  by  widov/  relating  to  homestead,  26,  ^. 
Highway.    See'  Stkeet. 

bill  t)  restrain  illegal  use  of,  neces-arj-  parties.  28,  ". 
Hirer  of  team,  when  liable  for  acts  of  driver,  83.  -^. 
Holder,  of  bill  of  exchange  payable  to  drawer,  may  sue  acceptor, 
when.  35,  -^. 

of  certificate  issued  at  void  tax  sale,  coitnty  liable  to  for 
amount  paid,  42,  ^. 

by  indorsement  of  contract  under  seal,  in  form  of  promis- 
sory note,  rights  of,  35.  "^^  tf  seq. 

of  note,  when  may  sue  upon,  35.  '^.  ef  seq. 

of  note,  payable  to  bearer,  may  sue,  35,  '',  et  seq. 

of  note,  payable  in  specific  chattels,  transferred  generally 
by  indorsement  may  sue.  35,  -", 

of  note  as  collateral  security  may  sue.  35.  '^. 

of  note,  lor  purposes  of  collection  may  sue.  35.  '". 

of  note  by  paper  indorsement  may  sue  thereon,  35,  ^,  et  seq* 


INDEX.  412 

Holder  —  Continued. 

of  note,  transferred  by  verbal  assignment  may  sue  as  real 

party  in  interest,  g  *36,  =,  tt  seq. 
of  note  may  sue  ■w-he'ther  indorsed  or  not,  35,  ^^. 
of  note  may  sue  \vben  transferred  bv  separate  -svriting, 

35,  i«. 
of  notes  separate,  secured  by  same  mortgage,  eitber  may 

foreclose,  36,  2». 
of  note  may  sue  all  or  anv  party  thereon,  at   bis   option, 

35,  IS. 
of  note  made  to  firm,  indorsed  by  one  partner,  may  sue, 

35,  *. 
of  note  of  partners  no  firm  name,  firm  insolvent,  rights  of, 

55,  11. 
of  joint  and  several  note,  against  insolvent  partnership, 

rights  of,  55,  i". 
Homestead,   presumption  as    to,  with  reference    to    parties, 

26,  ^'. 
suits  of  foreclosure  relating  to,  Imsband  and  wife  join, 

66,  46. 
interest  in  mortgaged  premises,  wife  claiming,  made  defend- 
ant in  foreclosure  suit,  69,  ^^. 
wife  may  intervene  in  suit  against,  llO,'  ^'^. 
right,  suit  to  foreclose,  wife  must  be  party,  27,  ^e. 
suits  relating  to,  husband  and  wife,  join.  66,  **,  et  seq. 
suits  relating  to,  necessary  parties.  26.  ^t* 
after  death  of  husband,  wife  may  sue  when.  66,  ^'. 
suit  to  restrain  collection  of  illegal  tax,  husband  and  wife 

may  join,  66,  ^'^. 
Homicide,  of  husband  who  may  recover  for,  78,  ^, 
Husband,  adultery  of,  no  bar  to  action  for  crim.  con.  65,  ^i. 
ostensible  agent  of  wife,  when  she  cannot  be  sued  as  prin- 
cipal for  price  of  goods,  68,  28. 
assault  upon  wife  she  may  not  recover  for,  67,  ". 
contract  of  wife  to  release  from  jail,  binding  upon  her 

property,  68,  3". 
sues  alone  upon  cause  of  action  arising  after  coverture, 

63,  2.  ^ 

sues  alone  or  jointly  with  wife  upon  contract  made  to  her 

during  coverture^  64,  ^,  et  seq. 
sues  alone  for  contract  made  with  both  dui-ing  coverture, 

68,  ^,  et  seq. 
rule  modified  as  to  liability  for  torts  of  wife  committed 

during  coverture,  70,  *>. 
right  of  action  for  crim.  con.  not  defeated  by  death  of  wife 

before  suit,  65,  '^. 
riglit  of  action  for  debauching  wife,  65.  ^^,  et  seq. 
liability  for  debts  of  wife  contracted  before  coverture.  68,  i. 


INDEX.  413 

Husband  —  Continued. 

not  liable  for  debts  anti-nuptial  of  wife  (Code),  §  68,  6. 
not  liable  for  debts  of  wife  incurred  in  separate  business 

(statute),  68,  '^'K 
when  wife  obliged  to  resort  to  suit  through  acts  of  former, 

he  is  properly  made  defendant,  66,  '. 
deserted  wife,  Avhen  latter  may  sjie  as/^nic  sole,  63,  ^3. 
deserted  wife's  action  for  slander  to  latter  brought  in  her 

name,  65.  ^^. 
may  after  divorce  sue  former  wife  for  improvements  placed 

on  her  lands,  67,  ^'^. 
not  liable  for  fees  of  attoi'ney  of  wife  in  suit  for  divorce, 

68,  a«. 
after  divorce  wife  may  sue  for  monev  borrowed  during  cov- 
erture, 67,  11. 
when  wife  mav  join  third  person  as  defendant  with,  in  suit 

for  divorce,'67,  i". 
wife  cannot  sue  after  divorce  for  tort  committed   during 

coverture,  65,  •*-. 
suit  for  dower  by  widow,  marriage  of  pending,  husband 

made  party,  66, '^^ 
has  action  against  any  person  who  entices  away  wife,  65,  -^, 
wife  has  no  action  for  enticing  away,  65,  '^''. 
may  sue  wife  as  executrix  of  estate  of  decedent,  67,  ^. 
executor  de  son  tort,  when  no  action  against  for  acts  of 

wife,  70,  ^. 
when  mav  sue  alone  for  distributive  share  of  wife  in  estate 

of  dececleut,  66,  ■•-. 
jointly  and  severally  liable  with  wife    for    expenses    of 

family  (Iowa),  68,  i^,  el  seq. 
when  made  party  to  suit  of  forcible  entry  and  detainer 

agaiust  wife,  69,  ^"*. 
liable  for  funeral  expenses  of  wife,  68,  '^^. 
death  of,  right  of  action  of  widow  relating  to  homestead, 

66.  *'. 
who  may  recover  for  homicide  of,  78,  ''. 
insane,  wife  may  not  recover  as  custodian  of,  G4.  ^. 
when  interest  of  wife  is  adverse  to,  she  should  bu  made  de- 
fendant, 63,  '. 
interests  of,  conflict  with  wife,  she  may  sue  aloue  making 

him  defendant,  66,  i-'. 
and  wife,  when  joined  in  action,  63,  i.  el  seq. 
mav  join  wife  in  suit  in  equitv  even  though  has  no  interest, 

66,  ^  et  seq. 
duty  of,  to  make  defense  for  self  and  wife  in  joint  suit 

against,  69,  ■*, 
debt  of,  when  purchaser  mav  deduct  from  price  of  land  of 

wife,  66,  *". 


414  INDEX. 

Husband  —  Continued. 

suit  bv  purchaser  to  dispossess  of  lands  of  wife  latter  must 

be  party,  ^  26,  ^s. 
when  should  sue  alone,  for  injury  to  possession  of  wife's 

hmd,  66,  •''«. 
when  may  maintain  ejectment  alone  for  lands  of  wife,  66,  ^' . 
when  sued  alone  in  ejectment,  lands  of  wife,  69,  '"^". 
when  wife  may  bring  ejectment  against,  66,  ^^,  et  seg. 
when  maj'  sue"^  for  rent  of  lands  of  wife.  66,  '^'^,  et  seq. 
not  bound  to  unite  to  suit  relating  to  lands  of  wife,  66,  ^o. 
deed  by  to  wife,  or  both  to  third  person,  fraudulent,  wife 

should  be  party  to  suit  to  set  aside,  69,  ^^. 
death  of  pending  action  by  him  and  wife  for  injuries  to  her 

land,  suit  survives  to  her,  66,  ^^  et  seq. 
sale  of  liquor  to,  seller  and  owner  of  premises  jointly 

liable,  98,  ^,  et  seq. 
properly  made  party  to  suit  by  wife,  marriage  pending,  64,  *. 
party,  suggeston  of  marriage  of  female  party  sufficient  to 

autliorize  making,  63,  ^". 
bill  to  impeach  marriage  agi-eement,  wife  made  defendant, 

64,  ^. 

liable  for  medical  services  furnished  family,  68,  21,  et  seq. 

as  rule  liable  for  necessaries  furnished  family,  68,  ^^,  et  seq. 

deserts  wife  is  liable  for  necessaries,  68,  ^•^,  ei  seq. 

when  not  liable  for  necessaries  furnished  wife,  68,  ^•'. 

must  be  next  friend  in  bill  by  wife,  unless,  63,  ^'^. 

when  wife  may  sue  upon  note  made  before  marriage,  67.  ^. 

joins   wife  in  an  appeal,  he  thereby  becomes  party  to  the 

action,  1,  ^^. 
when  may  sue  alone  for  conversion  of  propertv  of  wife, 

65,  ^».  1     x-      . 

may  sue  either  with  wife  or  alone  for  damages,  property 
seized,  exempt  from  execution,  63,  *■. 

cannot  maintain  replevin  against  Avife,  67,  ^. 

when  right  of  wife  to  sue  separately  presumed,  63,  '^. 

when  wife  carrving  on  separate  business  cannot  plead  non- 
joinder of,  68,  3^ 

death  of,  pending  action  by  wife  to  recover  her  separate 
property,  heirs  of  made  parties,  21,  '■^'^. 

is  projier  defendant  in  suit  by  wife  relating  to  her  separate 
property,  21,  1^,  et  seq. 

made  defendant  in  bill  to  enjoin  sale  of  sepai-ate  property  of 
wife  to  pay  debts  of,  28,  ■*'«. 

lias  what  interest  in  separate  property'  of  wife,  66,  ^. 

is  ]iro|)er  jmrty  to  suits  affecting  separate  property  of  wife, 

fraudulentlv  loans  separate  monev  of  wife  she  mav  recover, 
65,  -ju.  ■"  - 


I>-DEX.  415 

Husband—  Continued. 

when  may  sue  for  money  separate  property  of  wife  lost  by 

him  at  gaming,  ^  66.  *'. 
financial  embarrassment  must  be  established  in  suit  by 

■wife  for  separation  of  property.  67,  ". 
action  for  loss  of  service  of  wife,  resulting  from   injury 

to  latter,  65,  '. 
mav  sue  for  special  damages  resulting  from  injury  to  wife, 

etc.,  65.  J-', 
when  may  sue  alone  for  slander  of  wife,  65,  ^^. 
liability  for  torts  of  wife.  70.  i,  t^t  srq. 
tort  or'fraud  of  wife  not  liable  for,  70,  n,  et  seq. 
when  may  sue  as  trustee  of  wife  for  her  property  equitably 

belon-^ing  to  her,  66,  ■*. 
general  rule  wife  may  not  sue  at  law,  67.  ^ 
Husband  and  wife,  when  join  in  action  for  chattel  of  wife. 

Go,  K 
when  joined  in  action  upon  contract,  63,  *,  et  seg. 
must  jo;n  in  contract  made  in  relation  to  personal  security 

of  latter  when,  65,  ^^ 
when  sue  for  conversion  of  the  jDroperty  of  the  latter,  65,  ^'. 
must  be  living  together  to  support  action  crim.  con.,  65,  '**. 
should  join  in  actions  arising  before  coverture,  63,  ^. 
may  not  bo  sued  jointly  for  contract  made  during  cov- 
erture, 68,  ",  et  seq. 
properly  made  defendants  in  action  to  recover  anti-nuptial 

debts:  21.  ",  68.  *. 
suit  against  for  anti-nuptial  debt  of  wife,  defense,  68.  ^. 
suit  upon  debt  due  wifu.  effect  of  death  of  latter.  63.  i^ 
when  may  join  in  action  for  damages,  or  husband  sue 

alone,  63,'«. 
property  of  latter  levied  upon  by  creditors  of  former,  suit 

to  recover  damages  by,  66,  ^. 
action  for  injury  to  latter,  death  of,  effect,  common  law, 

65,  1^ 

writ  of  error  by,  when  death  of  wife  abates,  108,  '". 

when  action  by  to  recover  distributive  share  of  latter  in 

estate  of  decedent,  66,  *i,  et  seq. 
jointly  and  severally  liable  for  expenses  of  family  (Iowa), 

68.  *i5,  et  seq. 
join  relating  to  homestead,  60.  ^'■^,  et  seq. 
action  for  injuries  to  person  of  latter,  65,  ^,  et  seq. 
law,  join  in  action  for  injuries  to  latter,  65,  ^  et  seq. 
interests  conflict,  she  mav  sue  alone,  make  him  defendant. 

66,  J-'. 

when  suit  by  for  lands,  disaftinnance  of  sale.  66.  ". 
l^ropcrly  sue  in  ejectment  for  her  lands.  60,  ^*,  et  seq. 
when  niay  unite  in  bill  fcr  partition,  6G,  '^^. 


416  INDEX. 

Husband  and  Wifa —  Coyithmed. 

when  niiiv  sue  jointly  for  injury  to  possession  of  her  land, 

§  6G,  ^<  et  seq. 
may  jointly  sue  to  recover  purchase  price  of  lands,  6G,  ^5. 
when  may\inite  in  bill  to  quiet  title  to  her  lands,  GO,  -i. 
may  jointly  sue  for  trespasses  upon  her  lands,  GG.  ^'-K  et  >^eq. 
action  Ly,  for  injury  to  lands  of  latter,  death  of  either 

jmrty  action  survives  to  other,  GG,  ^',  H  siq. 
may  jointly  sue  or  husband  may  sue  alone  for  obstruction 

of  way  to  her  land,  GG,  •^"*,  et  seq. 
action  by.  for  obstructing  way  appurtenant  to  land  of  wife, 

death  of  latter  does  not  abate,  107,  ^^ 
suit  for  malicious  prosecution  of  latter,  except,  C5,  ^^. 
mortgage  by,  suit  to  foreclose  latter  should  be  party,  27,  ^'. 
when  assignee  of  note  (non-negotiable)   of  latter  brings 

suit  in  name  of,  G4,  ^i. 
joint  note,  pleading  upon  should  aver  what,  G9.  '-'.  et  seq. 
note  of,  for  debt  of  husband  cannot  be  enforced  against 

wife,  G8,  ^'^,  ei  seq. 
latter  necessary  party  to  restrain  action  against  both,  28,  ^". 
action  againsti^  for  her  separate  liability  former  nominal 

party,  2,  '■^. 
may  unite  in  suit  for  separate  property  of  latttr,  GG,  ^. 
aciion  for  slander  to  wife  brought  in  name  of,  65,  ^'^,  <t  req. 
when  sue  for  slander  to  latter,  when  husband  sues  aloue, 

G5,  ^1. 
slander  to,  joint  action  will  not  lie,  65,  20. 
•  judgment  in  favor  of,  survives  to  wife,  107,  20. 
liable  for  torts  of  latter  in  absence  of  former,  70,  '■^. 
both  liable  for  tort  of  latter  before  marriage,  70,  ^  et  seq. 
I.liots,  mny  sue  at  law  bv  next  friend,  Gl.  •*. 
Illinois,  action  by  People  of  the  State  of,  to  use  of  C.  D.  to 

recover  p  nalty,  when  will  not  be  dismissed,  39,  <>. 
Indian,  may  sue  for  "partition  of  lands,  29,  21. 

disability  to  sue,  how  taken  advantage  of,  29,  -•^,  et  seq. 
may  be  sued,  29,  25. 
Indiana,  joint  obligation,  death  of  co-surety,  effect  in,  SG,  i^. 
Indictmeat,  damages  recovered  by  for  death  by  negligence  of 

railroad  company,  107,  ^i. 
will  not  lie  against  officers  of  town  for  failure  to  repair 

bridge  uukss.  4G,  ^". 
Indispensable  party,  who  is.  18,  >^. 

when  judgment  debtor  is  to  suit  to  annul  ccnvevance  of 

lands,  2G,  *K 
to  injunction   to  restrain  collection  of  tax  to  pay  bonds, 

bondholders  numerous  are  not,  28,  2^. 
when  trustee  is  not,  to  suit  to  enforce  provisions  of  trust 

deed,  23,  i«. 


INDEX.  417 

Husband  and  "Wife  — Continued. 

to  bill  to  set  aside  will,  who  are,  ^  22,  2,  et  ceq. 
Indorsee.     See  Holder. 
Indorsed,  note  indorsed  generally,  delivered  to  on3  partner. 

firm  may  sue  on,  88,  '. 
Indorsement,  of  contract  under  seal,  liability,  £5,  -**. 

note  payable  in  specific  chattels,  transferred  by,  holdei 

may  sue,  35,  '^". 
note  as  signed  without,  assignor  necessary  partv  to  suit  on, 

2i,  ^\ 
note  made  to  agent  of  corp>oration,  latter  mar  sue  thereon, 

without,  90,  1*. 
of  note  holder  by  regular,  may  sue,  £5,,  -i,  et  s^eq. 
none  necessary  to  enable  holdjr  to  sue,  35,  '^. 
firm  note  transferred  by,  of  one  partner,  holder  may  sue 

upon,  35,  ■*. 
none,  purchaser  of  note  may  sue  in  name  of  insolvent 

when,  55,  ^. 
of  note  by  separate  writing  is  good,  S5,  ^^. 
Indorser,  liability  of  upon  contract  under  seal,  35,  -^. 
Infant,  how  appears  as  defendant  in  an  action,  58,  ^  et  seq. 
how  may  not  appear,  15.  ^^  et  seq. 
when  appears  in  action  by  curator  ad  Idem,  5G,  '^^. 
may  appear  by  guardian  in  proper  case,  5G.  -',  ct  seq. 
guardian  of  cannot  enter  appf-arance  for,  15.  ^'-. 
in  ane  person  appears  in  action  by  guardian  ad  litem,  15, 

when  appears  by  guardian,  pleading   should    show    due 

appointment.  56,  -'», 
appearance  and  defense  of  guardian  for,  when  shown  by 

parol.  53,  ^^ 
when  liable  to  an  attorney  for  defending  in  bastardy  pro- 
ceeding, 59,  ■*. 
contracts  of  as  rule  voidable.  59,  2,  ct  seq.  _ 
contract  for  benefit  of,  may  sue  upon,  56.  ^. 
may  .siie  for  breach  of  contract  of  employment,  56,  ^ 
when  acts  of  amount  to  conversion,  59,  ".- 
debt  of,  no  joint  action  against  guardian  and.  59.  c. 
separate  property  of  wife  reached  to  pav  debt  made  while 

sole,  68,  ». 
plaintiff  as  much  bound  liy  decree  as  arlult  but,  57.  '^.  et  seq. 
decree  against  must  be  obtained  on  full  proof,  57.  ''^. 
person    legallv    competent    appears  and  defends,   decree 

binds,  GO.  ^' 
aggrieved  bv  decree,  remedy.  7,  '3. 
defendant  cannot  defend  himself  nor  appoint  an  attorney, 

58,  ■'. 
defends  action  by  guardian  or  guardian  ad  litem,  58,  •*. 

Parties -41 


418  rs-DEX. 

Infant—  Continued, 

defense  of  by  either  guardian  or  guardian  ad  litem  same, 

§  58,  1^ 
defendant,  how  brought  into  court,  11,  ^,  et  seq. 
defendant,  when  compromise  may  be  confirmed,  CO,  ♦. 
defendant,  no    decree    against  except    upon    full    proof, 

60,  \ 
cannot  be  made  party  for  sake  of  discovei-y,  59,  ^^. 
equity  has  full  jurisdiction  over,  57,  ^5. 
cannot  administer  upon  estate  of  decedent,  56,  ^. 
heirs,  when  allowed  to  assert  claim  of  mother  to  estate  of 

deceased  guardian,  56,  ^. 
rights,  to  call  guardian  to  accomit,  57,  ^^,  et  seq. 
action  by,  against  guardian  for  an  account,  who  uecessarj^ 

parties,  21,  ^,  et  seq. 
action  upon  bond  of  guardian,  57,  '^'^,  et  seq. 
action  against  former  guardian  on  his  bond,  how  brought, 

57,  -'1. 

should  sue  by  guardian  or  next  friend,  56,  ".  et  seq. 
guardian  of,  may  sue  in  own  name,  when,  57,  ^,  et  seq. 
guardian  not  liable  for  debt  of,  57,  2*. 
when  guardian  liable  to  physician  for  services  to  slave  of, 

59,  '. 
settlement  of  guardian  with,  57,  ^^,  et  seq. 
guardian  in  socage  has  custody  of  lands  of,  and  may  sue  to 

recover,  etc.,  57,  '^. 
has  no  guardian,  guardian  ad  liteyn  must  be  api^ointed  for 

him,  58,  i=*. 
interests  of  guardian  adverse,  guai'dian  ad  litem  appointed, 

58.  J*. 

appointment  of  guardian  ad  litem,  should  appear  of  record, 
58,  1^  60,  «. 

defendant,  when  motion  for  appointment  of  guardian  ad 
litem,  made  by  plaintifif,  58,  ^^. 

defendants,  authority  of  court  as  to  appointment  of  guar- 
dian ad  litem  for,  58,  ^<^. 

defendants,  order  appointing  guardian  ad  litem  for,  with 
naming,  when  void,  58,  i". 

until  served  with  process  no  guardian  ad  litem  can  be 
appointed  for,  58,  «. 

defendant,  effect  of  omission  to  appoint  guardian  ad  litem 
for,  60,  '. 

guardian  ad  litem,  only  duty  of  is  to  make  defense,  58.  -^. 

guardian  ad  litem  cannot  waive  any  of  his  rights,  58,  --. 

when  wife  sues  by  guardian  ad  litem  or  next  friend,  56,  ^^. 

proceedings  in  insolvency  against,  when  void,  GO,  *=. 

judgment  entered  against,  and  not  guardian,  60,  1. 

judgment  as  binding  upon  as  adult,  60,  i". 


INDEX.  419 

Infant —  Continued. 

after  majority-,  may  sue  to  set  aside  contract  of  sale  of 

realty,  §  57,  ^*. 
necessary  partv  to  suit  to  rescind  contract  for  purchase  of 

land,  21,  J=».  ' 
note  bv  for  price  of  land,  disaffirmance  of,  releases  sureties. 

59,  K 
lands  of.  pfuardian  may  not  sue  for  in  own  name.  57,  •. 
brings  suit  for  partition  by  guardian.  57,  ",  et  seq. 
when  suit  for  partition  will  be  denied,  57,  '•*. 
in  suits  relating  to  their  lands,  made  defendants,  equitv. 

proceedings  to  sell  lands  of.  when  decree  will  not  bind,  GO,  y. 
cestui  qup  trnst,  suit  to  divest  interest  in  land,  necej?sarv 

party,  23,  ^3. 
attains  majority,  pending  action  by,  practice,  57,  ■*,  et  s^pq. 
when  not  liable  for  malicious  suit' brought  bv  next  friend. 

59,  13. 
action  to  enforce  rights  of  should  be  in  name  of,  56,  ^. 
when  may  sue  by  next  friend.  56,  '",  et  aeq. 
may  not  sue  infnr ma  pauperis  by  next  friend,  but  may 

sue  alone,  56,  '^^,  et  seq. 
court  may  require  next  friend  of  infant  to  give  bond,  56,  -'^. 
next  friend  of  in  action  may  not  receive  amoimt  recovered, 

56,  20. 
wife,  when  next  friend  may  not  sue  in  name  of,  56,  '*. 
who  may  be  next  friend.  5*G,  -^ 
next  friend  need  not  be  relative  of,  56,  i'. 
next  friend  of,  status,  50,  ^'^,  et  seq. 
next  friend  of,  powers  over  action.  2.  ^^. 
must  be  parties  to  all  suits  relating  to  their  property,  21, ". 

Slea  of  infancy  is  personal  to,  59,  i. 
efeudant,  when  time  commences  for  filing  dilatory  plea«, 

58   25. 
pleading  fails  to  show  partv  is  an,  not  ground  for  demun-er. 

56,  25. 
defendant  not  served  with  process,  judgment  against  void. 

11,  ". 
defendant  may  be  served  by  publication,  13,  ■♦. 
cannot  l)e  served  by  publication  in  South  Carolina,  13,  *. 
no  power  to  waive  service  of  process  upon  himself.  58.  ^. 
on  error,  fact  of  service  of  process  upon  must  appear,  58,  *". 
cannot  bind  his   rights  by  submission  to  arbitration  even, 

58,  26.  et  seq. 
cannot  be  brought  into  court  bv  stipulation  of  attoruev. 

15.  13. 
not  liable  for  trespasses  of  guardian.  59,  *", 
is  liable  for  torts  in  same  manner  as  an  adult,  59,  **,  et  seq. 


420  INDEX. 

Infant  —  Continued. 

after  majority,  liable  in  assumpsit,  for  money  tortiously 

taken,  ^  r;9,'^  ",  et  scq. 
unlawful  detainer  pliuukl  be  brought  in  name  of,  57,  "J. 
suit  by  alone,  mere  irregularity,  cured  by  verdict,  57,  ^ 
courts  of  admiralty  permit  to  sue  alone  for  wages,  when, 

57,  ». 
pretermitted  in  will,  may  recover  from  devisees  separatelv, 

56,  \ 

writ  of  entrv,  brought  in  name  of  bv  next  friend  (Mass.), 

57,  «. 

Infancy,  plea  of,  personal  to  infant,  59,  ^ 

defense  to  action  for  breach  of  promise  of  marriage,  59,  ^. 
pleaded  by  defendant,  action  on  joint  contract,  practice, 

59,  J^ 
Informality,  in  position  of  a  party  upon  the  record,  effect,  G,  '. 
Inhabitant.    See  Citizen. 
Injunction,  against  authorities  of  city,  prevent  giving  contract 

to  one  not  lowest  bidder  proper  parties,  28,  ^^. 
city  election  to  prevent  payment  of  expenses  of,  necessary 

parties,  28,  ^s. 
eitv  necessary  partv  to  bill  to  restrain  illegal  payment, 

28,  -^^. 
to  restrain  city  from  paying  fire  marshal  for  services,  latter 

must  be  joined,  28,  >*-'. 
against  board  of  supervisors  of  county,  how  many  should 

be  parties,  42,  c. 
will  lie  to  prevent  wrongful  appropriation  of  corporate 

name,  90,  ^^ 
corporation  doing  business  in  excess   of  powers,  bill   to 

restrain  party,  28,  ^^. 
public  officer  will  not  be  restrained  from  canceling  license 

of  foreign  corporation,  47,  ^''^. 
when  stockholder  may  maintain  to  restrain  corporate  acts, 

93,  a. 
death  of  plaintiff,  failure  of  representative   to  prosecute 

suit,  does  not  dissolve,  8,  ^'^. 
when  will  lie  against  debtor  to  prevent  fraudulent  disposi- 
tion of  property,  3G,  ■»-^. 
bill  to  restrain  illegal  use  of  public  highwav  necessary 

party,  28,  ^i. 
plank  road  to  restrain  improper  interferance  with,  who 

may  sue,  28,  ^^. 
to  restrain  action  against  husband  and  wife,   necessary 

party,  28,  ■*'. 
joinder  of  parties  plaintiff,  not  sufficient  reason  for,  96,  ^^. 
to  prevent  sale  oi  separate  property  of  wife  for  debts  oi 

husband,  necessary  parties,  28,  ■^^.^ 


J 


IN-DEX.  421 

Injunction  —  Continued. 

tij  iLstraiii  conveyance  of  dower  interest,  capacity  in  which 

wid'jw  made  party.  §  28,  *^. 
non-juinder  of  defendants,  no  objection,  103,  '^^. 
bill  to  restrain  enforcement  of  judgment,  uecessarv  parties. 

28,  *'^,  et  seq. 
to  enjoin  judgment,  when  sheriff  not  necessary  party,  28,  *'. 
in  foreclosure  of  land  contract,  requisites,  0,  ■*". 
to  prevent  payment  of  j^roceeds  of  sale  of  lands  to  railroad 

company  latter  must  be  party,  28,  2". 
to  i)revent  liberally  taking  lands  for  public  vise,  necessary 

patties,  28,  ^^,  et  spq. 
to  enjoin  action  at  law,  necessary  parties,  28,  ^^. 
to  restrain  collection  of  note,  necessary  parties,  28,  "*'. 
to  prevent  fictitious  assignee  from  collecting  note,  right  of 

assignor,  35,  ^^. 
rule  with  reference  to  parties  to  suit  to  restrain  nuisance, 

30,  la. 
final,  all  persons  interested  must  be  parties  before  granted, 

9,  a». 
necessary  or  proper  parties  to  suit  for,  28,  '^,  H  .sy g. 
will  not  bo  gi-ant€d  against  a  person  not  a  partv  to  the  suit, 

23,  20. 
exception  to  rule  that  rights  of  person  will  not  be  deter- 
mined if  not  party,  28,  ^•^. 
partner  against  co-]xirtncr,  when  will  be  retained,  9,  -"^ 
when  partner  may  file  bill  for,  to  prevent  co-partner  from 

collecting  partnership  debts,  88,  ^i. 
to  prevent  publication  of  copy  of  atlas  sold  by  one  mem- 
ber of  firm,  necessary  partus,  28.  ^-. 
when  officer  not  proper  party  to  bill  for,  103.  -. 
status  of  sheriff  as  party  to  action  to  restrain  execution  of 

process,  51,  ^i. 
when,  sureties  on  bond  are  parties  to  suit  for,  86,  -*. 
to  restrain  collection  of  tax  to  pay  bonds,  bondholders, 

numerous,  necessary  parties,  23,  -^. 
prevent  collection  of  sclioul  tax  to  pay  interest  on  bonds, 

necessary  parties,  28,  ^K 
to  restrain'collection  of  tax  levied  on  property  within  limits 

of  city  latter  cannot  maintain  bill,  i3.  '^. 
restrain  collection  illegal  tax  on  homestead,  husband  and 

wife  bring,  66,  *^. 
to  restrain  collection  of  tax  upon  school  lands  county 

proper  party,  28,  -*'. 
when  tax  payer  may  not  maintain  for  self  and  ail  others, 

etc.,  school  tax,  30,  ". 
against  Stato  and  county  treasurers  to  prevent  receipt  of 

worthless  script  in  payment  of  taxes,  50,  ^. 
Pasties—  CO 


422  INDEX. 

Injunction —  Continued. 

to  prevent  execution  of  tax  deed  clerk  of  board  of  super- 
visors necessary  party,  f_  28,  *^. 
town  must  be  party  to  bill  to  restrain  paying  out  money 

voted,  etc.,  46,  ^^. 
bill  of,  to  prevent  sale  of  i)roperty  by  trustee  for  benefit  of 

creditors,  necessary  parties,  28,  ^^ 
bill  of,  to  restrain  sale  under  trust  deed,  trustor  necessarv 

party,  28,  ^o. 
Inmate,  of  county  hospital,  county  not  liable  to,  for  unskillful 

treatment  of  physician,  42,  '^2. 
Insane  person,  or  idiot  appears  in  action  by  guardian,  15,  ^. 
can  only  appear  as  defendant  by  guardian  or  committee, 

02,  ^  et  seq. 
when  committee  cannot  sue  for,  61,  ^^. 
liability  upon  contracts,  62,  ^,  et  seq. 
defendant  becomes,  pending  litigation  practice,  11,  ^. 
defendant  becomes,  pending  suit  guardian  made  party,  62,  ». 
common-law  rule  as  to  defense  of,  62,  ''. 
■when  not  necessary  party  to  suit  in  x>ersonam  in  equity,  21,  ^. 
estate  of,  liable  for  expenses  of  proceeding  in  lunacy,  62,  ^'^. 
action  by,  without  guardian,  matter  of  abatement,  61,  i". 
not  liable  to  action  by  guardian  for  services,  etc.,  until 

account  settled,  62,  ^'K 
when  no  action  against,  for  money  received  bv  guardian, 

62,  ". 
when  court  may  appoint  guardian  ad  litem  for,  62,  *,  et  aeq. 
wife  may  not  recover  as  custodian  of,  64,  ^. 
judgment  should  not  be  entered  against,  by  default,  62,  '''. 
judgment  by  default  against,  when  court  of  equity  will  set 

aside,  62,  '^\ 
is  proper  party  in  suits  relating  to  his  lands,  21,  ^. 
application  of  guardian  to  sell  lands  of  jurisdiction   of 

court,  13,  e. 
must  be  party  to  suit  for  partition,  28,  i*. 
trustees  of  hospital  for,  when  may  be  sued  to  determine 

title  to  State  lands  held  by  them,  33,  *. 
suit  for  interdiction,  must  be  personally  cited,  62,  ^ 
may  sue  in  own  name,  61,  2. 
when  action  brought  in  name  of,  61,  ^  et  seq. 
found,  ex  parte  proceeding,  may  bring  action  in  own  name 

to  traverse  proceeding,  61,  1. 
suit  brought  in  name  of  either  self  or  guardian,  61,  ' . 
better  practice  to  sue  by  guardian,  61,  =*. 
when  suit  brought  in  name  of  by  next  friend,  61.  ". 
liability  for  torts,  62,  1^. 
Insolvency,  wlien  discharge  in,  no  defense  to  action  bv  prin- 
cipal, 84,  K 


INDEX.  423 

Insolvency  —  Continued. 

pioeeedings  in  against  infant,  when  void,  J  GO,  ^. 

of  principal,  no  defense  to  surety  on  forthcoming  bond, 

85,  21,  et  seq. 
of  principal,  right  of  surety  to  contribution  depends  upon, 

St).  ^,  et  seq. 
Insolvent.    See  Bantcrupt. 

laws  of  State,  alien  resident  entitled  to  benefit  of,  5.5,  '. 

when,  no  capacity  to  appear  in  court,  55,  '-. 

one  of  two  obligees   on  rt])levin   bond  becomes,  suit   by 

solvent  obligee  alone,  55,  *. 
joint  obligors  dead,  representatives  not  necessary  parties  to 

suit  on  bond  of,  2i,  ^'^,  et  seq. 
suit  on  bond  of,  on.  death  of,  suit  may  proceed  against 

sureties,  55,  ^'J, 
surety  may  file  bill  against  co-surety  on  bond  for  exonera- 
tion, 55,  '. 
corporation,  when  creditor  may  join  with  in  suit  to  set 

aside  proceedings  in  insolvency,  55,  '•'. 
discharge  of  rights  after,  55.  ^'^,  ft  seq. 
discharge  of,  no  bar  to  suit  by  alien,  55,  ^s. 
discharge  of,  when  will  not'  reach    defendant  in   trover, 


00, 


18 


debtor,  plaintiff  in  pendinc  suit  declared  to  be,  may  still 

proceed  in  his  name.  55,  ^. 
joint  judgment  creditor,  when  equity  will  permit  set-off, 

55,  ^. 
judgment  debtors,  not  necessary  parties  to  creditor's  bill, 

21,  i«,  et  seq. 
estate,  suits  relating  to  necessary  parties,  24,  '*'.  et  seq. 
guardian,  when  bill  for  account  will  lie  against  surety  of 

alone,  8G.  =*o. 
vendor,  suit  by  to  enforce  vendor's  lien  to   land,  when 

adverse  claimants  to  title  made  parties,  27,  ''. 
lessee,  assignee  of  should  be  defendant  in  suit  to  set  aside 

lease,  55,  i*. 
pui'chaser  of  note  without  indorsement,  mav  sue  in  name 

of,  55,  6. 
party  becomes  pending  suit,  effect.  24.  '^''. 
partner,  selling  interest  to  i^ay  individual  debt,  co-partner 

may  sue.  88.  '^'^. 
partner,  when  ground  for  appointment  of  receiver,  in  suit 

for  settlement  of  firm  affairs,  55,  ^^. 
partnership  rights  of  holder  of  joint  and  several,  note 

against,  55,  ^^. 
partnership,  no  firm  name,  partners  execute  note,  rights  of 

b.oldor,  55,  11. 
necessary  parties  to  suit  of  to  recover  property.  24,  '^. 


424  INDEX. 

insolvent —  Continned. 

sureties,  not  necessarv  parties  to  bill  bv  surety  for  contri- 
bution, ^  24,  ^K       " 
Instrument,  not  recorded,  purchaser  holding  by,  need  not  bo 

party  to  foreclosure  suit,  7,  ^^. 
executed  jointly  to  several,  "when  one  niav  sue  in  name  of 

all,  36,  '•'«. 
Insurance,  part  owner  of  chattel  liable  to  co-owner  for  failure 

to  procure,  81,  '■^*. 
joint  owner  of  vessel  should  unite  in  action  for,  81,  ^. 
policy  to  "whoever  may  be  concei'ned  at  time  of  loss," 

necebsary  party  to  suit  on,  24,  3». 
policy  of,  obtained  by  B.  from  X.,  loss  payable  to  A.,  if  loss 

occurs  either  A.  or  B.  may  sue,  37,  ^". 
policy  of  by  X.  upon  life  of  A.,  loss  payable  to  C,  A.  cannot 

avoid  on  ground  of  fraud,  37,  **. 
Insurance  company,  upon  payment  of  loss  occurring  through 

negligence  of  third  person,  right  of  action  accrues  to, 

38,  13. 
suit  by  to  set  aside  release  from  damages  given  by  policy 

holder  to  wrong-doer,  pi-opcr  party,  24.  ^". 
who  has  paid  loss  arising  from  wrongful  act  of  stranger, 

may  sue,  90,  ^^. 
Interest," when  citizen  may  sue  for  self  and  all  others  to  test 

validity  of  law  affecting  public  money,  SO,  **,  et  seq. 
contingent  not  sufficient  to  support  action,  31,  i^. 
in  subject-matter  of  bill  in  equity,  persons  having  proper 

parties,  18,  i,  et  seq. 
suit  in  equity  by  assignee  upon  split  demand  necessary 

parties,  31,  i^. 
of  liusband  and  wife  conflict,  either  may  sue  other,  G7,  ^. 
of  wife  adverse  to  husband  in  action  by,  she  should  be 

made  defendant,  Co,  ''. 
of  husband  adverse,  bill  bv  wife,  former  made  defendant, 

G3,  1^  66,  1^. 
wife  no  such  as  requires  her  to  be  made  party  to  suit  for 

common  property,  21,  2+. 
dower  in  land,  widow  may  sue  purchaser  of  husband  for, 

66,  «. 
when  committee  has  adverse,  to  insane  ward,  latter  neces- 
sary party  to  suit,  21,  ^. 
of  insane  person   and  guardian  clash,  action  brought  by 

former  how,  61,  **. 
of  insane  person,   court  of  equity  wdll  set  aside  default 

when  necessary  to  protect,  C2,  i''. 
in  propcrtv,  suit  bv  insolvent  to  recover,  necessarv  parties, 

24,  2a.     '  ' 

action  upon  an  instrument  by  one  not  a  party  to  it,  must 

be  shown,  31,  ^ 2. 


I 


INDEX.  425 

Interest  —  Continued. 

to  enable  person  to  intervene,  §  110,  i. 

amount  of,  110,  *. 

receiver  may  protect  by  intervention,  110,  «. 

no  identity  no  objection  to  joinder  of  defendants  in  equity, 

99,  1,  et'seq, 

unity  of,  to  enable  person  to  be  joined  as  co-plaintitf  in 

acuon  upon  contract,  94,  ^,  et  seq. 
of  party  plaintiff  to  joint  snit  in  equity,  96,  ^,  et  seq. 
no  communitv  of  in  co-plaintiflfs,  fatal  objeciion,  102,  '", 

100.  a. 

plaintiffs    having    separate    and  distinct,   proper  motion, 

102,  i«,  et  seq. 
common,  when  no  non-joinder,  i)lain tiff  brings  bill  for  self 

and  all  having.  100,  i«. 
in  realty,  contract  of  sale  of,  infant  after  majority  may  sue 

to  set  aside,  57,  i*. 
legal  in  contract  in  whom,  31.  ^. 

party  to  a  contract  under  seal  has  the  legal.  30,  ^  ft  seq. 
person  Avithout  cannot  insit^t  on  being  made  party,  104,  '^. 
"what,  person  must  have  to  constitute necLSsarj' party,  18.  i'. 
of  persons  iu  suit,  exceptions  as  to  rule  making  'parties, 

19,  1,  el  seq. 

in  object  of  bill  in  equity,  persons  having  proper  parties, 

18,  ^,  et  seq. 
person  without,  should  not  be  made  i:)laintifl'  20,  <». 
what  plaintiff"  mitst  have  in  oi'der  to  maintain  an  action, 

31,  1".  et  seq. 
beneficial  when  plaintiff  need  not  have  in  action  upon  note, 

35,  1",  et  seq. 
of  person  in  suit,  when  may  join  as  plaintiff,  30,  *. 
in  action  common  or  general,   one  p:rson  mav  sue  foi 

benefit  of  all,  30,  *. 
class,  one  person  may  not  sue  for  own  individual  benefit. 

30,  ^. 
real  party  in,  see  Real  Party  in  Interest. 
real  party  in,  when  plaintiff" is  under  Code,  34,  '■^,  et  seq. 
real  party  iu,  when  made  a  defendant,  100,  '■^'-. 
equity  will  hear  cause  if  real  parties  in,  are  before  it.  103,  ^. 
of  person  seeking  to  be  made  party  to  partition  suit  must 

be  shown,  5,  ',  et  seq. 
parties  all  before  court  of  equity,  position  of,  eft'ect,  6,  ^ 
iu  p.'ndiug  suit  transferred,  action  continued  in  name  of. 

9.  ^. 
transfer  of  pending  action,  vendee  does  not  thereby  become 

party  to  the  action,  1,  -*•. 
transfer  of  pendente   lite,  effect  of  as  to  making  partiea 

20,  ^  et  seq. 


426  INDEX. 

Interest —  Continued. 

det'Ludant  parts  with  his,  in  suit,  new  parties  not  necessarv, 
§  7,  i^ 

plaintiff  transfers  pending  suit,  effect,  lOG,  •',  et  seq.,  3i,  ^. 

impending  action  transferi-ed  after  judgment,  appeal  taken 
in  name  of  assignee,  108,  ^*. 

persons  acquire,  before  execution  of  trust,  not  necessary 
parties  to  bill  to  enforce,  23,  ^'. 
Interplead,  when  a  person  compelled  to,  112, '. 

sheriff,  when  may  compel  creditors  to,  51.  ''. 

when  sheriff  may  not  compel,  creditor  and  adverse  claimant 
of  attached  propert}'  to,  51,  *'.  • 

Interpleader.     See  Bill  of  Ikterpleadeb. 

provisions  of  Code  cumulative,  112,  ♦',  '. 

what  is,  112,  -. 

when  lies,  113,  ^,  &,  6, 

when  proper,  112,  i. 

when  improper,  113,  ^-,  ^'■^. 

property  brought  into  court,  113,  ^. 

to  determine  claims  to  legacy,  113,  i". 

will,  instruction  as  to,  113,  i^. 

jDosition  of  plaintiff,  113,  ^. 

position  of  defendants,  115,  •>. 

plaintiff  may  not  dispute  rights  of  defendant,  115,  '. 

issues,  how  disposed  of,  115,  *. 

power  of  court  over  fund,  115,  ^. 

decree  in,  115,  ^ 

effect  of  decree,  115,  2. 

when  cost  alloAved,  115,3 

appeal  in,  115,  ^". 

bill  of,  what  is,  1 12,  8. 

bill  of,  allegations,  112,  '^. 

should  set  forth  the  several  claims,  112,  ^°« 

affidavit  as  to  collusion,  113,  «. 

when  cross-bill  proper  in,  115,  ^. 

when  demurrer  to,  proper,  113,  ^<'. 

when  demurrer  sustained,  113,  J=. 

when  may  be  filed,  111,  2. 

who  may' file,  114,  1. 

who  may  not  file.  114,  3, 

who  may  file  bill  in  nature  of,  114,  *. 

distinction  between  bill  and  bill  in  nature  of,  112.  5. 

time  for  filing,  113,  ^',  j14,  «. 

excuse  for  filing,  112,  « 

object  of,  112,  «. 

right  to  maintain,  113,  *. 

what  necessary  to  maintain,  114,  ^. 

maintained  only  by  one  in  possession,  113,  ^K 


ixDEX.  427 

Interpleader  —  Continued. 

what  plaiiitifl"  admits,  §  114,  ^^. 

in  nature  of,  city  may  maintain  claimants  to  an  office.  43. ''. 

"when    corporation    mav  maintain    against   claimants    to 
dividend,  90,  i«. 

wlien  depositary  may  maintain.  114,  •>. 

garnishee  may  maintain,  113,  ^^, 

when  landlord  may  maintain,  against  attaching  creditors  of 
tenant's  crop.  79,  ''. 

when  maker  of  noto  may  maintain,  114,  ". 

when  stockholder  may  not  maintain.  114.  '. 

when  tax  payer  may  not  maintain.  114,  i'\ 

tenant  may  iile  Avhen,  79,  '^^,  114,  ^^. 

when  trustee  cannot  maintain.  114,  ^^ 

when  trustee  may  maintain,  114,  ^-. 
Intervene,  landlord 'may,  how,  110,  ^^. 

who  riuiy,  in  suit  to  enforce  a  tax,  110,  -K 

who  may,  to  resist  appointment  of  a  trustee,  110,  -^. 

who  may,  in  actions  for  real  estate,  110,  ^*'. 

who  may  not,  in  ejectment,  110,  ^^ 

n-ho  may  not,  in  foreclosure  suit,  110.  --. 

who  mTy,  in  suit  for  mining  claim,  110,  -". 

who  may,  in  partition,  110,  ^'. 

wife  may,  in  suits  relating  to  homestead,  110,  ^-. 

when  Avife  may  not,  in  suit  to  quiet  title,  110,  '**. 

when  assignee' of  note  may,  llU,  ^^. 

when  assignee  may,  suit  on  trust  deed,  110,  -'. 

when  attorney  ma'y  not,  in  suit  by  administrator,  110,  ^8. 

when  consigiiors  may,  110,  ^'^. 
Intervener,  who  is,  109,  '^. 

character  before  court,  111,  ^. 

when,  may  be  substituted  as  party.  111,  ^^ 

interest  of,  110,  ^ 

when  may  interpose  statute  of  limitations,  111,  ^- 

must  show  what  right,  110,  ^.  ' 

may  assert  rights  against  whom.  111.  '^. 

rights  of,  do  not  help  plaintift'.  111.  -'■. 

rights  in  attachment  suit,  111.  ^^,  ^^. 

has  standing  in  court  until.  111.  i'-'. 

must  not  d.lay  principal  suit.  111,  ^. 

granted  reasonable  time,  109,  •*. 

wliat  delays  entitled  to.  Ill,  i". 

must  take*  the  action  as  he  finds  it.  Ill,  *. 

may  not  urge  irregularities,  HI.  *>. 

ma'y  not  object  to  form  of  action.  111.  ^. 

Avhat  exceptions  may  not  plead.  Ill,  ". 

Avhen  may  dismiss  intervention,  111,  ^'. 

bound  bv  decree,  111,  --. 


Intervenor  —  Contimied. 

right  to  appeal,  §  111,  2^. 

separate  appeal  by,  effect.  111,  3«. 

may  not  appeal  from  final  jurlgment.  111,  -5. 

defendant  should  be  party  to  proceedings  in  error,  111,  '^. 
Intervention,  what  is,  109,  ^ 

how  made.  109,  K 

when  takes  place,  109,  *. 

■when  appearance  is  not  an,  109,  ^. 

when  not  proper  remedy,  109,  ',  111,  *. 

when  cannot  be  maintained,  110,  ^. 

when  service  waived,  109,  *». 

interest  necessary,  110,  ^ 

amount  of  interest  in,  110,  *. 

must  not  delay  suit,  109,  **. 

must  not  change  form  of  i^roceedings,  109,  ^^ 

who  must  take  notice  of,  111,  ^". 

when  parties  may  not  object,  109,  ^i. 

at  what  stage  of  "suit  proper,  109,  ^, 

must  be  before  judrment,  109,  ^^ 

when  too  late,  109,  ^. 

parties  when  need  not  notice,  109,  ^". 

right  exists  only  in  civil  actions,  109,  ^'^. 

right  exists  in  mandamus,  109,  ^'^. 

m  jii-ohibition,  109,  ^*. 

no  right  of,  in  quo  icarranto  proceedings,  109,  ^^. 

no  right  of,  after  suit  abandoned,  109,  ^^. 

when  dismissed,  109,  i"-i'. 

when  falls  without  cause  being  set  for  trial,  111,  ^s. 

when  intervenor  may  dismiss,  111,  ^'. 

in  attachment  proceedings,  110,  ". 

by  creditors  in  attachment  suit,  110,  ^. 

right  of  assignee.  110,  '. 

by  receiver,  110,  •>. 

not  proper  by  general  creditor,  109,  i^. 

when  not  proper  in  ejectment,  109,^°. 

Avhen  not  proper  in  foreclosure  suit,  110,  '-. 

owner  of  lost  note,  may  assert  rights  of,  35,  ^g. 

when  sureties  of  defendant  in  replevin  mav  assert  rights 
of,  86,  ^^  X  -  o 

execution,  debtor  asserts  rights  bv  in   suit  to  set  aside 
sheriffs  sale  of  his  lands  bv,  5,  ^^/ 

rights  of  appeal.  111,  21. 

appeal  lies  from  what  orders,  111,  ^6, 
Iowa,  rule  as  to  who  may  sue  on  bond  given  to  secure  particu- 
lar person,  36,  «. 
Issue,  meaning  of  words  ''after  issue  joined"  in  act  to  prevent 
abatement,  105,  *. 


i>'DEX.  429 

Issue  —  Continued. 

raised   bv  answer  in  natm-e  of  plea  in  abatement  arises, 

must  be  tried.  ^  102,  i«. 
how  corporate  existence  placed  in,  90,  '^. 
in  interpk-ader,  bow  disposed  of,  115,  ^. 
Jail,  one  apartment,  no  action  against  sheriff  for  imprisoning 

debtor  with  felons,  51,  i^. 
county  liable  if  it  does  not  furnish,  4:2,  ^'^. 
county  not  liable  for  erection  of,  near  residence  of  private 

person,  42,  ^'*. 
contract  of  wife  to  release  husband  from,  binding  upon 

her  property  by,  68,  "^o. 
insecure,  no  'defense  to  action  against  sheriff  for  escape, 

51,  10. 
Joinder,  of  claims  against  estate,  75. 
of  defendants  in  equity,  9i),  '^,  et  seq. 
ot"  defendants  in  actions  upon  contracts,  97,  i,  et  seq. 
of  defendants,  when  improper  in  action  upjn  contract,  97,  ^. 
of  defendants  i  i  action  upon  joint  contract,  97,  ',  et  seq. 
joint  and  several  contract,  survivor  and  representative  of 

decedent  never  joined  as  defendant,  74. 
of  defendants,  when  proper  in  suit  to  declare  deed  to  be  a 

mortgage,  99,  * 
of  defend;ints  in  ejectment,  when  jiroper,  98,  '**. 
of  defendants,  when  proper  in  suit  to  annul  fraudulent 

acts,  98,  1^  et  seq. 
person  having  common  interest  refusing  to  be  made  plain- 
tiff may  be  joined  defendant,  6,  •*,  et  seq. 
of   defendants  in   action  upon    foreign  judgment,   when 

proper,  97,  *. 
of  defendants  in  suit  to  set  aside  certificates  of  title  to  land, 

when  ])roper,  99,  ^. 
in  suit  against  makers  of  note,  part  of  whom  execute  mort- 
gage, 99,  '. 
who  made  defendants  in  action  upon  note,  97,  ^,  et  seq. 
defendants,  survivor  on  joint  contract,  and  executor  of 

decedent,  improper,  107,  ^^,  et  seq. 
when  defendants  properly  joined  in  action  for  tort,  98,  ^. 
of  towns  as  defendants,  when  improper,  40.  '. 
of  defendants,  who  proper  in  suit  to  establish  trust,  99,  ^. 
when  lieir  mav  be  sued  alone  upon  claim  against  estate, 

22,  21,  et  seq' 
when  landlord  must  join  tenant  as  co-plaintiff  in  action  to 

suppress  nuisance,  79.  '^. 
persons  holding  several  notes  secured  by  same  m«u-tgage, 

in  suit  of  foreclosure  proper,  9G,  ',  et  ."^eq. 
legal  and  equitable  owner  of   note,   improper  in   action 

thereon,  102,  ^. 


i30  IN'DEX, 

Joinder  —  Continued. 

ol  parties,   equitable  suit  against  administrator,  proper, 

§  22,  1^  et  aeq. 
of  parties  in  suit  to  foreclose  mortgage,  27.  -^  et  seq. 
of  parties  in  suit  to  restrain  nuisance,  30,  i-^. 
of  parties,  proper  in  suit  to  enforce  specific  performance  of 

contract  for  sale  of  lands,  2G,  ^,  et  seq. 
who  may  be  joined  as  plaintiffs,  94,  24.  ^'^. 
■who  made  plaintiffs  in  suit  in  equity,  9G,  i,  et  seq. 
of  parties  plaintiff  in  equity,  saving  expense  not  sufficient 

reason  for,  96,  ^^. 
of  parties  plaintiff  witliout  knowledge  or  approval,  effect, 

9,  '',  et  seq. 
of  plaintiffs,  when  proper  in  suit  to  obtain  relief  upon  con- 
tract ill  equity,  99.  ^. 
of  plaintiffs,  when  improper  to  restrain  execution  sale  of 

Lmd,  96,  1-1. 
infant  plaintiff  attains  majority  pending  suit,  joinder  as 

party  with  guardian  improper,  5/,  ^. 
of  parties,  joint  payee,  personal  representative,  and  sur- 
vivor cannot  unite  as  plaintiffs  in  action  on  joint  note, 

72,  i». 
of  plaintiffs  in  suit  to  restrain  maintenance  of  nuisance 

caused  by  flowing  lands,  95,  ^^. 
plaintiffs  may  join  for  false  return  by  officer,  95,  ^. 
stranger  imijroperly  joined  as  plaintiff,  motion  to  strike  out 

proper,  102,  ^^  et  seq. 
plaintiff  transfers  interest  pending  suit  to  a  trustee,  proper, 

23,  «. 
surviving  partner  and  executor  of  decedent  may  be  as  de- 
fendants where,  74. 
firm  debt,  if  both  partners  be  dead  their  executors  cannot 

be  joined  as  defendants  in  suit  to  recover,  74,  ^^. 
(La.),  of  surviving  partner  and  rtpresentative  of  decedent, 

proper,  25,  >*. 
of  defendants  for  sole  purpose  of  acquiring  jurisdiction 

over  non-resident,  103,  •*,  10,  **. 
improper,  sheriff  and  predecessor,  in  action  for  property 

taken  by  former  and  lost  by  latter,  51,  '^^. 
if  shfrift'and  deputy  for  tort  of  latter  alone,  improper,  51,  ^'^. 
guardian  and  sureties  may  be  in  action  for  account,  86,  '^^. 
of  parties,  when  sureties  on  several  separate  bonds  may  be 

joined  in  one  suit,  86,  ^^. 
when  sureties  may  join  in  suit  for  contribution,  86,  ^. 
when  sureties  may  bring  joint  action  to  recover  amount 

paid,  from  principal,  86,  ^,  et  seq. 
relief  asked  against  surety,  of  principal  proper,  24,  ^". 
when  principal  need  not  be  in  suit  against  surety,  86,  ^^ 


INDEX.  431 

Joinder  —  Continued. 

survivor   and  representative  of  decedent,  never  joined  at 

lav\'  in  action  on  joint  contract,  ^  74;  maybe  in  equitj-, 

7i. 
wlien  tax  payers  properlv  unite  in  suit  to  set  aside  contract 

of  district  board,  UG,  ^^. 
of  parties,  tenants  in  common  may  join  in  suit  to  quiet  title 

tj  their  common  estate,  82,  ^. 
tenants  in  common  of  mill  may  join  in  action  for  diversion 

of  water  from,  82,  '^^. 
oi  ce:4nis  and  trustee  as  defendants  generally  proper,  33,  ^. 
ce.^tui  need  not  be  in  suit  by  trustee  to  foreclose  trust 

mortgage,  32,  i^. 
of  trustee  and  cestui  in  suit  relating  to  trust  funds,  32,  ", 
of  cestnis  in  action  against  trustee  to  recover  share  of  trust 

funds,  33,  21. 
m  of  wife,  when  cause  of  action  would  survive  to,  proper,  63,  ^. 

■  of  wife  proper,  in  action  upon  her  contract  made  when  sole, 

F     .         G4,  1,  et  seq. 

of  husband  and  wife  in  action,  when  proper,  G3,  i,  et  seq. 
Joint,  plaintiffs,  when  proper  for  tortious  act  of  defendant,  95,  ". 
Joint  action.    See  Actiox. 

generally,  when  will  lie,  95,  ^,  et  seq. 

what  proof  necessary  to  support,  94;,  ^i,  et  seq. 

for  recovery  of  bailed  property,  when,  05,  '•'. 

when  brought  for  breach  of  contract.  94,  ^^. 

when  will  lie  against  parties  to  building  contract,  86,  i^. 

none  for  conversion  of  whale  taken  by  one  of  two  vessels 

under  contract  of  mateship,  95,  ■*. 
when  lies  upon  covenant.  94,  i*,  et  seq. 
rtpon  joint  demand,  31,  ^^. 

wlien  cannot  be  maintained  for  deposits  in  bank.  91.  "'. 
when  will  lie  against  officer  and  creditor  for  goods  attached 

98,  1^  et  seq. 
for  selling    liquor  to  husband,    plaintiff   injured,    whec 

prooer,  98,  ^,  et  seq. 
for  sale  of  liquor  to  husband,  plaintiff  injured,  when  no< 

proper,  98,  »,  et  seq. 
when  lien  of  material  men  may  be  enforced  in,  96,  '". 
when  will  lie  for  cancelation  of  note  and  mortgage,  96,  ". 
none  for  slander,  95,  i^. 

for  slander  to  husband  and  wife  will  not  lie,  65,  -". 
when  will  not  lie  against  heirs  of  joint  tenant  for  rents  col- 
lected. 82,  26. 
against  defendants  for  tort,  when  not  proper,  98,  ^  et  seq. 
for  trespass,  injury  to  chattel.  95,  '. 

for  trespasser  of  lierd  of  cattle,  when  proper,  98.  ".  et  seq. 
for  trover  and  conversion,  proper  judgment  in,  98,  ^K 


432  INDEX. 

Joint  contract.    See  Conteact  Joint. 

who  made  defendants  in  action  npon,  §  9'^'  S  ^^  seg. 
survivor  of,  wlicn  may  sue,  94,  '. 
■U'hen  severence  of  cause  of  action  upon,  9i,  *^. 
judgment,  bar  to  another  action,  07,  ^'^. 
Joint    and    several,    contracts.     See   Contracts  Joint    and 
Several. 
plaintiff  may  treat  tortious  acts  as,  89,  ^^,  98,  -^ 
contract,  who  sued  iipcn,  97,  '•*.  et  seq. 
Avhen  contracts  of  partners  made,  any  one  may  be  sued,  89, 

^  et  seq. 
contract,  judgment  on,  effect,  97,  ^^,  et  seq. 
liability,  judgment  entered  against  persons  ov^r  whom  jur- 
isdiction acquired,  97.  ^". 
instrument,  statute,  judgment  may  be  entered  against  one 
party  to,  8,  27. 
Joint  execntcrs.    See  Executor  Joint. 

Joint  owners,  all  must  unite  in  action  to  recover  bailed  prop- 
erty, 95,  '3. 
of  real  estate,  right  to  partition,  82,  ^2,  et  seq. 
of  vessel  should  unite  in  action  for  freight,  81,  ",  ^. 
Joint  stock  company,  when  may  sue  in  federal  court  same  as  in 

State  court,  8,  ^. 
Joint  tenants,  generally  suits  relating  to  personalty.  81. 
■when  cannot  recover  rent  from  a  co-tenant,  82,  '^^. 
See  TcRT. 
Joint  tort,  what  acts  necessary  to  constitute,  98,  ^'^. 
Jr..  no  part  of  name  of  person,  3,  ^. 
Judge,  of  court  of  general  jurisdiction,  not  liable  for  judicial 

acts.  49,  «. 
Judicial,  discretion.    See  Discretion  Judicial. 

acts,  judge  of  court  of  general  jurisdiction  not  liable  for, 
49,  «. 
Judgment.    See  Decree. 

administrator  may  sue  upon  in  individual  capacity,  72,  1^. 

suit  en  by  foreign  administrator.  71,  ^'. 

motion  to  amend,  defendant  bankrupt,  effect.  54,  "5. 

plea  of  discharge  may  be  filed  by  bankrupt  at  any  time 

before.  54,  '^,  et  seq. 
plaintiff  becomes  bankrupt  after  and  before  arpcal,  effect, 

53,  i«. 
data  of,  plaintiff  becomes  bankrupt  after  submission  of 

cause  to  supreme  court,  53,  ^o. 
what  is  proper  against  defendants  in  action  upon  joint 

bond,  97,  -\  et  seq. 
persons  bound  by,  although  names  not  used  as  parties  to 

action,  7,  '",  et  seq. 
infant,  bound  by,  same  as  adult,  60,  '". 


INDEX.  433 

Judgment  —  Continued. 

appearing  bv  officer  of  State  in  suit  will  not  bind  it  bv, 

§  iO,  1*. 
action  for  plantation  supplies  furnished  wife,  husband  hot 

bound,  6«,  i«. 
certified  copy  of,  sufficient  to  estaljlish  claims  in  probata 

court,  7i. 
on  joint  contract,  bar  to  another  action,  97,  ^^. 
on  joint  and  several  contract,  tffi.ct,  97,  '',  et  seq. 
that  living  person  is  dead,  void,  7,  •>. 
party  dying  after,  in  whose  name  appeal  taken,  108.  '. 
death  of  one  of  two  or  more  plaintitts  or  defendants,  within 

a  year  after,  execution  how  issued,  105,  '. 
against  estate  of  decedent,  when  administrator  not  liable 

to  pay,  72,  2'. 
in  name  of  decedent,  administrator  not  liable  for  money 

collected  on,  when,  75, 
against  decedent  and  another,  remedy  against  latter  must 

be  exhausted  before  suit  agai-st  estate,  9,  '^. 
defendant  against  co-defendant  must   be   cross-pleadicjr, 

11,  **. 
joint  and  several  liabilitv  entered  against  persons  served, 

97,  30. 
upon  joint  and  several  instrument,  by   statute  may  be 

entered  against  one  party  to,  8.  ^'. 
erroneous,  when  tenents  in*  common  may  join  in  an  action 

for  damages  for  land  sold  uiid-jr,  73. 
what  should  be  rendered  in  action   by  receiver  against 

executor,  77. 
foreign,  when  defendants  mav  be  joined  in  action  upon, 

97,  *. 
bill  to  enjoin  when  sheriff  not  necessary  party  to,  28.  *'-. 
bill  to  restrain  enforcement  of  necessary  parties,  28.  *^. 
recovered  by  husband  and  wife  survives  to  wife,  107,  -". 
when  cannot  be  rendertd  against  husband  in  joint  action 

against  self  and  wife,  2,  ^'■^. 
against  wife  in  joint  action  against  husband  and,  although 

husband  discharged  in  bankruptcy,  GS,  ^'^. 
when  entered  against  husband  and  wife  for  tort  of  latter, 

70,  8. 
should  be  entered  against  infant  and  not  against  guardian, 

60,  1. 
against  infant  not  served  with  process  void.  11,  ". 
not  absolutely  void  for  omission  to  appoint  guardian  od 

litem  for  in'fant  defendant,  CO.  ''.  et  aeg. 
shoulel  not  be  entered  against  insane  person  by  elefaiilt,  C2,  '\ 
bill  of  interpleader  should  be  tiled  before,  li3,  ^'. 
intervention  must  be  before,  109,  '^. 

Parties  — 37 


434  INDEX. 

Judgment—  Co7itinued. 

interveiior  may  not  appeal  from  filial,  §  111,  ^j. 

justice,  entitled  to  aid  of  court  of  euaucery  to  enforce, 

when,  36,  ^'. 
justice,  creditor  entitled  to  aid  of  equity,  when,  3G,  ^'. 
motion  to  correct,  who  may  be  heard  on,  7,  '-. 
against  non-resident  proper,  jurisdiction  over  obtained  by 

joinder  with  resident,  lO,  i". 
in  foreclosure  suit  may  be  on  note  alone,  8.  '''•^. 
in  action  upon  note  against  maker  and  indorser,  may  be 

taken  against  maker  alone,  J)7,  ^"*,  et  seq. 
in  action  upcm  note  against  maker  and  indorser,  may  bo 

taken  against  indorser  alone,  97,  ^^,  et  seq. 
upon  some  of  the  parsons  liable  upon  note,  effect,  97,  21. 
extent  of,  against  makers  of  note  part  of  whom  execute 

mortgage  as  security,  99,  ''. 
when  2>artner  cannot  confess,  to  binel  firm  property,  89,  ^^ 
payment  of,  to  nominal  party  to,  when  no  satistaction,  2,  ^^. 
action  will  lie  against  town  upon,  even  tliougli  portion  paiel 

by  statutoiy  assessment,  46,  ^. 
peiidexie  lite  purchaser  bound  by,  7,  ^3,  ft  seq. 
against  corporation  fraud  of  ofiicers  of,  when  receiver  may 

sue  to  set  aside,  62,  ^^. 
receive^r  proper  person  to  enforce,  in  ci editors'  suit,  etc., 

when,  8,  ^s. 
in  7-em,  proceedings  against  absentee,  29,  —. 
upon  scii-e  facias,  what  entered  for  plaintiff,  105,  1^. 
scii'e  facias  to  revive,  how  regareleel,  105,  ^^,  et  st^q. 
against  deputy  sheriff  action  de  bonis,  no  action  after, 

against  sheriff,  51,  '*. 
who  may  sue  upon,  36,  *^  et  seq. 

payment  by  surety,  principal  should  Lave  notice  of  appli- 
cation tohave  it  assigned,  86,  i". 
Avhat  may  be  renelereel  in  trespass  quare  clauswn  fregit 

against  several  defendants,  105,  &. 
proper  in  joint  action  for  trover  and  conversion,  C8,  i'. 
undertaking  to  secure  harmless  from,  when  action  will  lie 

before  payment,  9,  **. 
Judgment  creditor,  no  right  of  action  against  purchaser  at 

cxeculiun  sale  for  breach  of  contract,  36,  ■*^,  et  seq. 
when  niay  pre)ceed  in  equity  to  reach  property  of  debtor, 

36,  >***,  et  seq. 
crpii  ty,  how  may  proceed  to  reach  property  of  debtor,  36,  ^'^. 
foreign,  right  to  sue  to  subject  lands  of  debtor  to  payment 

of  debt  of,  29,  ^ 
theory  upon  which  equity  acts  in  granting  relief  to,  3G,  -3. 
when  may  unite  in  suit  to  enforce  liens,  96,  ^. 
insolvent,  when  equity  will  permit  set-off  against  joint,  55,  &. 


INDEX.  435 

Judgment  Creditor  —  Continued. 

iiuulo   parries  to  creditor's   bill  without  order   of   court, 

§  102,  31. 
proceeding  by,  to  compel  garnishee  to  pay  over  monej', 

proper  party,  24,  *^. 
Judgment  debtor,  when  may  bo  bound  in  suit  to  reach  trust 

funds,  5,  -i^. 
when  indi.spensal^lo  partv  to  suit  to  annul  convevancc  of 

his  lands,  2G,  ^K 
when  is  not  a  necessary  party  to  suit  to  set  aside  a  convey- 

aiK^o  of  his  lands,  2G,  "*. 
Jurisdiction,  any  motion  in  pending  cause  other  than  to  the,  is 

gLiK  ral  appearance,  14,  ^,  ft  seq. 
appearing  for  solo  purpose  of  presenting  question  of,  is 

special,  14,  **. 
special  appearance  to  object  to,  should  be  confined  to,  16,  *. 
federal  courts,  when  depends  upon  citizenship  of  parties, 

proof,  10,  5. 
of  feeleral  courts  in  action  not  arising  out  of  contract,  8,  *. 
how  jurisdiction    over    defendant  obtained  in   action   to 

enforce  personal  contract,  11,  ■*. 
corporation  submits  to  by  doing  business  in  foreign  state, 

91,  1. 
how  acquired  over  foreign  corporation,  91,  ^,  et  seq. 
meaning  of  term  "  defendant"  as  afiecting  question  of,  10,  ^. 
person  made  defendant  for  purpose  of  acepxiring,  how  ob- 
jected to,  103.  3. 
defendants  rt  sidents  of  different  counties,  suit  in  either 

proper,  10,  ^. 
definition,  10,  i. 
whether  fureign  administrator  may  be  sued  in  local  court, 

question  of  juelicial  eliscretiou  rather  than  of.  74. 
of  court  of  equity  depends  on  nature  of  rights  of  parties 

before  it,  7.  ^'^. 
when  couit  of  equity  will  not  retain  in  suit  against  defend- 
ants. 9,  5U. 
of  court  of  insolvency,  does  not  reach  citizen  of  another 

State  unless,  55,  ^'. 

Eroceedings  in  intervention  not  question  of,  109,  ^, 
ow  obtained  in  suit  to  enforce  equitable  lien  over  defend- 
ant non-resident,  11.  3. 
joint  and  several  liability,  juelgment  entered  against  whom 

acquired.  97,  '^^. 
of  court  over  lands  of  insane  person,  upon  application  of 

guardian  t ")  sell,  13,  ''. 
in  suit  to  foreclose  mortgage,  court  must  have  ov^r  person 

and  thing,  7,  ^'. 
of  court  over  nou-resielent,  how  acquired,  12.  K 


436  rxDEX. 

Jurisdiction—  Continued. 

vi  court  over  non-resident  served  l)y  publication,  ^  13,  ^ 
over  non-resident  not  acquired  in  personal  action  by  publi- 
cation, 13.  5*. 
cannot  be  obtained  over  non-resident  by  impi'operly  joining 

a  resident,  10,  ^. 
over  person  of  non-resident,  appearance  of,  is  waiver  of 

objection,  16,  ^'. 
of  State  over  propertv  of  non-resident  -svithin  its  borders, 

12,  2. 
of  court  over  property  of  non-resident,  liow  acquired,  12,  3. 
when  depends  upon  ]virty  it  is  one  named  in  record,  10,  ■■^. 
presumption  as  to,  10,  ^',  et  seq. 
presumption  as  to,  in  absence  of  proof  orfrom  the  record, 

10,  12,  et  seq. 
>Yhen  presumption  as  to,  from  recoi  d  of  court  ceases,  10,  ^'^. 
■    presumption  over  non-residents,  12,  ^. 
acquired  over  unknown  heirs  by  implication,  13,  ^. 
generally  a  party  may  pursue  his  rights  in  any    court 

having,  8,  ^ 
Jury,  Avhen  county  liable  for  board  of,  42,  ^'^. 
Justice,  rule  for  making  partii-s  to  suit  in  equity,  courts  will 

not  pca-mit  it  io  deleat,  19,  ^. 
Justices  of  county  court,  for  use  of  county,  suit  in  name  of 

justices,  49,  ">. 
Justice  of  tlie  peace,  liable  for  illegal  exercise  of  ministerial 

powers,  it),  1". 
no  action  lies  in  favor  of  to  recover  money  paiel  as  penalty 

for  marrying  persons  under  age,  49,  '. 
Iia1)ility  for  official  acts,  49,  ^,  et  seq. 
Kin  next  of.    See  Distributee. 

when  parties  to  pr(;bate  proceeding,  1,  '■^'^. 
when  may  sue  representatives  of  co-administrator  for  dis- 
tributive share,  77. 
after  ])avment  of  debts  administrator  trustee  for  alone, 

77.  78,'». 
in  bill  by,  against  administrator  for  settlement  of  the  estate, 

necessary  parties,  22,  ■^^,  22,  ^^,  et  seq. 
Lands,  actie)n  to  condemn,  death  of  defendant  in,  revived  in 

name  of  heir,  105,  ^^. 
injunction   to  prevent  taking    for  public  use,   necessary 

parties,  28,  '^^,  et  seq. 
suit  by  administrator  of  vendor  to  enforce  contract  for  sale 

of,  necessary  parties,  20,  i",  et  seq. 
necessary  party  to  suit  to  enforce  specific  performance  of 

contract  to  convey,  26.  *',  et  seq. 
verbal  assignment  of  contract  to  convey,  may  be  enforced, 

36,  1",  et  seq. 


INDEX.  437 

Lands  —  Continued, 

suit  by  assignee  to  enforce  contract  for  sale  of,  necessary 

parties  to.  ^  26,  ". 
verbal  contract   for  conveyance  of   interest,   when  such 

grantee  necessary  party  to  creditor's  bill  against  grantor 

to  reach  lands,  24,  ^^. 
suit    to  enforce  contract    to  convey,   deed  conveying  to 

vendor  of.  destroyed  before  being  recorded,  cfibct  as  to 

parties  26,  i^. 
to  suit  to  enforce  contract  to  convcv,  when  agent  need  not 

be  party,  26,  ^\ 
to  suit  to'enforce  contract  to  convey,  when  cestui  que  trust 

should  be  party,  26,  i«. 
to  enforce  contract  to  convey,  when   trustee  should  be 

party,  26,  ^^,  et  seq. 
contract,  executed  by  decedent,  who  necessary  parties  in 

suit  to  enforce,  22, '',  et  seq. 
sold  by  executor  under  mistake  of  power,  effect,  73. 
agreement  to  convey  to  wife,  a,ction  to  enforce  bi-ought  by 

wife,  66,  a^ 
of  wife,  specific  performance  will  not  be  decreed  against 

her,  upjn  contract  of  self  and  husband,  69,  ^^. 
suit  to  set  aside  conveyance  of,  necessary  parties  to,  23.  -*. 
suit  to  set  aside  mortgages,  deeds  of  trust,  etc.,  uccLssary 

parties,  26,  ^'^. 
contract  for  purchase  of,  by  infant,  suit  to  rescind  by 

guardian,  infant  necessary  party,  21,  ^^. 
suit  by  husband  and  wife  to  recover,  when  disaffirmance  of 

sale,  66,  ii. 
when  joinder  of  plaintiffs  to  restrain  execution  sale  of, 

improper,  96,  ^*. 
sheriffs  sale  of,  how  judgment  debtor  made  party  to  suit 

to  set  aside,  5,  i5. 
patent  for,  issued  by  United  States,  suit  to  set  aside,  attor- 
ney-general must  institute,  48,  ^. 
suit  to  correct  error  in  conveyance,  necessary  parties,  26,  '*'. 
county  recorder,  not  necessary  party  to  suit  to  correct 

error  in  conveyance,  26,  '^K 
deed  to  two,  when  grantor  not  necessary  party  to  suit  to 

correct  error  in,  26,  '^'-. 
covenants  relating  to,  right  of  assignee  to  sue  upon,  36,  -^. 
of  debtor,  suit  by  trustee  for  benctit  of  creditors  to  subject 

to  payment  of  "debts,  necessary  parties,  26.  ^^,  et  seq. 
of  debtor,  bill  to  subject   to  payment  of  debt  of  foreign 

judgment  creditor,  requisites,  29,  ". 
of  surety,  bill  to  subject  to  payment  of  debts  of  principal, 

necessary  parties,  26,  ■">. 
when  surety  may  subject  to  payment  of  debt,  8G,  '. 


438  rs-DEX. 

Lands  —  Continued. 

right  of  action  for  l.ireach  of  ijarol  contract  for  sale  of,  vrlio 

may  sue,  §  107,  ^ 
eviction  of  co-parceners  from,  ■when  sue  jointly,  D4,  ^^. 
taken  for  jiublic  nse,  administrator  may  sue  for  damages,  73. 
of   decedent,   dutv  of   administrator  with  referenco    to, 

78,  32. 

of  decedent,  Avhen  heirs  are  not  necessary  parties  to  suits 

relating  to,  22,  ^o. 
of  decedent,  final  settlement,  proceedings  to  set  aside  and 

subject  to  payment  of  debts,  necessary  parties,  2G,  °^. 
dower,  interests  in,  suit  by  widow  to'  rccoyer,  necessary 

parlies,  26,  '^^,  et  seq. 
heir  liable  only  to  extent  of,  descended  to  them,  parties, 

22,  "^^,  et  seq. 
administrator  may  maintain  ejectment  for,  when,  73. 
of  decedent,  Avhcn  administra'tor  may  maintain  ejectment 

for  heirs,  73,  '^'^. 
executor  may  maintain  ejectment  for,  when,  73. 
heir  may  bring  ejectment  for,  when,  73,  78,  "^,  ct  seq. 
devised,"  patent  issues  after  death  of  testator,  necessary 

parties  to  suit  to  recover,  22,  o^. 
ejectment,  occupant  should  be  party,  26,  ^5. 
persons  claiming  distinct  parcels  of,  when  properly  joined 

as  defendants  in  ejectment,  98,  ^^. 
purchasers  of  separate  parcels  of,  cannot  join  in  suit  to 

enjoin  former  owner  from  prosecuting  separate  suits  of 

ejectment,  96,  ". 
action  of  ejectment,  or  for  mesne  profits,  when  does  not 

abate,  107,  ■*',  et  seq. 
amount  of  recovery  in  ejectment,  9,  '^^,  ctseq. 
of  infant,  guardian  of  may  not  sue  for  in  own  name,  57,  '. 
of  infant,  guardian  in  socage  of  infant  has  control  of,  may 

sue  to  recover,  57,  **. 
dedicated  to  public,  when  corporate  authorities  of  may 

maintain  ejectment  for,  43,  ^^ 
of  wife,  when  husband  may  maintain  ejectment  for  alone, 

6G,  ^". 
of  wife,  ejectment  for,  husband  should  be  joined  as  com- 
plainant, 66,  1*,  et  seq. 
of  wife,  ejectment,  suit  against,  who  sued,  69,  ^",  et  seq. 
claimed  bv  wife  as  separate  property,  ejectment  for,  she 

sued  alone,  69,  '■^'K 
separate  property  of  wife,  may  maintain  ejectment  even 

against  husband,  66,  ^^,  et  seq. 
suit  by  purchaser  of  husband's  interest  in,  to  dis 

latter,  necessary  parties,  26,  5^. 
flowage  of,  who  may  unite  in  action  for  damage,  95, 


INDEX.  439 

Lands  —  Contimien. 

tiowage  of,  who  joined  as  plaintiffs  in  suit  to  restrain 
nuisancj  caused  by,  ^  95,  *'. 

flowacr  •  of,  when  joint  action  will  not  lie  for  acts  causing, 
98,  ^\ 

contract,  foreclosure  of,  requisites  for  injunction,  9,  *". 

Guit  relating  to  homestead,  who  necessary  parties,  CC,  "'■'. 

person  in  possession  of,  may  sue  for  injuiy  to,  though  he 
has  no  titb,  79,  '. 

who  may  intervene  in  suit  for,  110.  **. 

no  action  ior  lawful  act  upon,  bv  owner  although  malicious, 
GO,  i. 

liens  upon,  suit  to  enforce,  who  made  xmrties  to,  27.  ^. 

revival  of  dormant  judgment,  tffc;ct  of  lien  upon,  105,  ^'-. 

mechan'.c's  lijn,  action  to  enforce,  parties  to,  27,  ^^,  ct  seq, 

niortg:v;20  of,  avIicu  not  proper  party  to  suit,  2-i,  *^ 

owner  of,  rights  of  in  watr  course  upnn,  33,  ^^,  ct  fieq. 

infant  brings  suit  of  partition  by,  57,  ^^. 

sought  to  be  partition '-d,  claimants  of  dower  interests 
should  be  joarties,  28,  ^'=,  et  seq. 

mere  occmints  of,  not  necessaiy  parties  to  suit  for  i>arti- 
tion,  28,'",  ft  seq. 

statutorv  suit  for  partition,  nlaintiff  need  not  have  posses- 
sion, 0,  ^^. 

partiaou  of,  title  disputed,  j)laintifif  must  establish  at  law, 
9,  ■^'^. 

pai-ci:ion  suit,  woman  defendant  marries  pending,  husband 
not  made  party,  effect,  7,  ^*. 

sold  by  subbtitiited  agent  under  power  of  attorney,  who 
sue  for  price,  Si,  -^. 

purchas3  price  of,  administrator  may  maintain  action  to 
enforce  lien  for,  73. 

suit  t:)  enforce  lien  for  purchase  price  of,  necessarv  parties, 
27,  2,  ct  seq. 

of  d:c:dent,  when  heirs  necessary  parties  to  suit  to  recover 
purchase  price  of,  22.  ". 

of  dcc:dent,  when  heirs  are  proper  parties  to  suit  of  ad- 
ministrator de  ho)ih  noil  to  subject  to  payment  of  the 
purchase  price,  2G.  ^^. 

when  purchase  money  considered  as.  in  equity.  7S.  -'. 

note  given  for  purchase  price  of,  when  assignee  may  fore- 
close title  bond,  35,  ^■'. 

proceeds  of  sab  of.  injunction  to  restrain  payment  to 
railroad  company,  Ir.ttcr  must  be  party,  28,  "^. 

nota  of  infant  for" price  of,  disaffirmance  of  releases,  sure- 
tie^.  .:9,  3. 

bond  for  price  of,  payment  by  surety,  necessary  parties  to 
bill  of,  to  subject  to  payment  of,  26,  =>-, 


440  INDEX. 

Lands —  Continued. 

of  wife,  action  to  recover  purchase  price  brought  hj  hus- 
band and,  g  GG,  ^^,  et  seq. 

fund  arising  from  sale  of,  when  wife  necessary  party  to 
suit  to  recover,  21,  ^. 

pui-chase  of,  by  general  government,  liabilities,  etc..  40,  ^. 

purchase  of,  Avhen  cestui  may  enforce  trust  for,  33,  '^-K 

deed  given  as  security,  when  purcliasers  properly  made 
defendants  in  suit  to' recover,  99,  "*. 

suit  by  purchaser  at  execution  sale  to  dis]-)ossess  husband 
of  land  of  wife  latter  must  be  loarty,  20,  ■^^. 

when  pendente  lite  pui'chaser  mav  defend  action  to  recover, 
0,  '-'. 

necessary  parties  to  suit  to  quiet  title  to.  2G,  ^^  et  seg. 

when  husband  and  wife  may  unite  in  bill  to  quiet  title  to 
her,  GG,  ^i. 

stranger,  when  cannot  be  maae  party  to  suit  to  quiet  title, 
5,  ^'. 

suits,  quiet  title,  plaintiff  must  recover  upon  allegations  of 
complaint,  if  at  all,  9,  '■^^. 

bill  to  quiet  title,  when  equity  will  not  entertain,  GG,  -'-. 

rent  of,  when  administrator  may  sue  for,  73, 

of  wife,  action  for  rents,  etc., 'of,  when  brought  bv  hus- 
band, GG,  aa. 

receiver  of  rents  and  profits  of,  powers  of,  52,  ^". 

of  infant,  proceedinfrs  in  probate  court  to  sell,  when  decree 
will  not  bind,  GO,  ». 

of  insane  person,  when  committee  cannot  sue  for,  61,  ^^ 

of  insane  person,  petition  of  guardian  to  sell,  jurisdiction 
of  court  over,  13,  *>. 

of  wife,  statutorv  proceeding  for  sale  of.  she  should  be  de- 
defcndant.  G9,'  ^i. 

school,  see  School  Lands. 

suits  in  equity  relating  to,  necessaiy  parties  to,  2G,  ^ 

suits  relating  to  persons  made  defendants  by  general  aver- 
ment, 9,  2T. 

infants,  properly  made  defendants  in  suits  relating  to, 
C,  ^ 

insane  person  proper  party  in  suits  relating  to,  21,  ^.  et  seq. 

naked,  trustee  cannot  sue 'alone  in  suit  relating  to,  32,  ^. 

of  wife,  suits  relating  to,  husband  not  bound  to  unite  in, 
GG,  1",  et  seq. 

of  intestate,  who  may  maintain  suit  to  set  aside  tax  sale  of, 
78,  2». 

contract  for  sale  of,  when  obligors  in  may  unite  in  suit 
to  set  aside  tax  deed,  96,  ^^. 

sold  for  taxes,  when  countv  not  liable  for  redemption 
monev,  42.  ^. 


INDEX.  441 

Lands —  Continued. 

sale  for  delinquent  taxes,  what  is  that  will  support  action 

for  fees,  §  50,  ^. 
suit  prosecuted  by  life  tenant  abated  by  his  death,  107,  3». 
after  tenants  in  common,  incorporate  for  sale  of,  who  may 

sue  for  trespasses  upon,  93,  ♦*. 
administration  may  sue  for  trespass  upon,  when,  73. 
administrator  may  maintain  action  for  trespass  against 

heir,  when,  73.' 
trespass  upon,  when  coi-poration  may  suo  for,  90,  ^^ 
of  wife,  trespasses  upon,  husband  and  wife  may  jointly  si:e 

for,  66,  '^^,  et  seq. 
in  name  of  trustee  action  for  trespass  in  his  name,  32,  ^^. 
suit  upon  bond  for  title  for  conveyance  of,  when  assignor 

necessary  party,  2G,  ■*,  et  seq. 
when  defendants  property  joined  in  suit  to  set  aside  cei'ti- 

ficates  of  title  to,  99,  **.* 
of  decedent,  action  against  administrator  to  try  title,  heirs 

necessary  parties,  22,  i^. 
State,  when  tri:stee  of  hospital  for  insane  may  be  sued  to 

determine  title  to,  held  by  them,  33,  *. 
implitd  trust,  who  made  defendants  in  suit  to  cstabHsh, 

99,  ^ 
implied  trust  in,  suit  to  establish  necessary  parties,  23.  ^^ 
when  guardian  will  not  bo  held  as  trustee  of,  purchased 

with  funds  of  infant,  57,  ^". 
held  by  deceased  partner  in  trust  for  firm,  suit  for  convey- 
ance, parties,  26,  -,  et  seq. 
suit  to  divest  title  of  minor  cestui  que  tt-ust  trustee  neces- 
sary party  to,  23,  ■*■*. 
of  wife,  obsti'uction  of  way  to,  cither  husband  and  wife,  or 

husband  may  sue,  G6,  ^^. 
separate  property  of  wife,  when  husband  and  wife  may 

jointly  sue  for  injury  to  possession,  GG,  '^^  et  seq. 
of  wife  when  husband 'should  sue  alone  for  injury  to  pos- 
session of,  6G,  ■'^^. 
of  wife,  when  wife  may  sue  alone  for  injury  to  possession 

of,  66,  ^". 
of  wife,  injury  to  the  reversion  she  must  sue  alone,  GG,  ^. 
of  wife,  action  in  joint  names  of  husband  and  wife,  for 

injuries  to,  on  death  of  either  partv  survives  to  other, 

66,  ai,  et  seq. 
of  infa  :t.  writ  of  entry  for,  brought  in  name  of  infant  by 

next  friend  (\Mass.),  57,  ^. 
of  wife,  when  she  may  prosecute  writ  of  entry  alone,  66,  ^^. 
Landlord,  when  proper  party  defendant  in  ejectment,  SO,  '^. 
when  mav  maintain  action  for  injurv  to  leased  premises, 

79,  «.     ' 


442  IXDEX. 

Landlord —  Continued. 

wlieu  may  file  interpleader  against  attaching  creditors  of 
tenant,  ^  79,  '. 

when  liable  to  stranger  for  non-r.pair  of  leased  premises, 
80,  ',  «. 

when   liable  to  tenant  for  non-repair  of  leased  premises, 
80,  ^  3. 

when  must  join  tenant  as  cc-pLiintiff  in  action  to  suppi'ess 
nuisance,  79,  ^'■^.  • 

may  collect  rent  althouc;'-!  tenant  refused  to  enter  upon 
leased  premises,  79,  ^'^, 

entitled  t  >  possession  of  property  given  as  security  for  pay- 
ment of  rent,  79,  ^". 

on  death  of,  who  entitled  to  r^nt,  79,  ^'•'. 

when  may  intervene,  liO,  ^'•'. 

when  joint  action  vaaj  bo  maintained  for  restitution  of 
1  ased  premises,  79,  ^^. 

trespass  upon  crop    when   tenant  mav  maintain  action, 
79,  3-5. 
law,  who  should  be  made  party  to  an  action  at,  18,  i. 

in  action  at,  same  person  cannot  be  both  plaintin  and  de- 
fendant, G,  1",  et  seq. 

beneficial  plaintiff  need  not  be  named  in  record,  2,  '■^. 

claim  arising  from  transgression  of  cannot  be  enforced,  9,  ^^. 

testamentary  tnist  inconsistent  with,   heir    may    contest 
execution  of,  78,  ''. 

when  verdict  for  defendant  contrary  to,  89,  ^^. 
Ler-se,  assignee  of,  light  to  sne  f(n-  rent,  3G,  '■^^,  et  seq. 

suflticiency  of  a,spignment,  3G,  --. 

dissolution  of  in  suit    for,   assignee  of  insolvent    lessee 
should  bo  made  defendant,  55,  ^-. 

made  by  executor,  he  may  recover  on,  73. 

for  term  of  years  for  gros's  amount,  several  actions  cannot 
bo  maintained  upon  for  rent,  79,  ^^. 

upon  breach  of  terms  of,  when  joint  action  may  be  main- 
tained for  restitution  of  premises.  79,  ^  K 
Leased  premises,  when  landlord  may  maintain  action  for  injury 

to,  7J, «,  y.  "        . 

eleath  of  plaintiff  in  action  to  recover  possession  of,  effect, 

79,  ^». 
when  landlord  liable  for  non-repair,  80,  ',  '^. 
when  landlord  liable  to  tenant  fcr  non-repair,  CO,  -,  et  ccq. 
when  tenant  liable  for  non-repair  or  negligent  use  of,  80,  *. 
solel  upon  execution,  who  may  sue  for  rent,  £0,  '■^". 
L8;j£Cy,   assignee  of,   suit  by  to  recover,    recessarv   parties, 

22,  J^J.  " 

bill  t'j  recover,  necessary  parties,  22,  ^i,  et  i^eq, 
when  interpleaeler  proper  to  settle  claims  to,  113,  ^'J. 


rs-DES.  443 

Legacy —  Continued. 

V,  liLU  action  iipon  bond  of  execiitcr,  lo  recover,  properly 
Lvouf^ht  in  name  of  probate  jvidge,  §  43,  ^. 

due  ininor,  suit  to  recover  sljould  bo  brox;ght  ia  l:i3  name, 
53,  «. 

lapse  of,  TThcn  question  presentee!  as  to  the,  necessary 
parties,  22,  "-*,  ct  Sfq. 

Triicn  suit  fur  must  bo  broiiglit  in  equity,  77. 

cannot  be  recovered  until  after  demand,  77. 

cannot  ha  recovered  witliout  setting  up,  representative,  77. 

"vvhen  legatees  may  join  ia  action  to  enforce  payment 
against  devisee,  78,  ^'^. 

of  personal  property,  legatee  cannot  maintain  bill  to 
recover  before  probate  of  ■will,  73,  ^^  nor  before  it  is 
payable,  78,  ^'K 

•when  legatee  may  maintain  suit  for  preservation  of,  73,  ^'-. 

vflien  the  right  to  cannot  be  determined  by  a  bill  of  inter- 
pleader tiled  by  a  legatee,  77,  2'. 
Legatees,  generally  actions  by  or  against,  78. 

Avhen  not  necessary  parties  to  bill  for  an  account  of  per- 
sonal assets  of  deceased,  22,  ^^. 

bill  for  account,  against  executor,  when  error  to  direct 
payment  of  legacy,  77. 

paying  debt  of  estate,  cannot  recover  the  amount  from  the 
executor,  75. 

debtor,  when  necessary  party,  22,  ^3, 

when  necessary  party  to  suit' to  reach  property  of  judgment 
debtor  in  hands  of  heir.  24,  '^\ 

when  cannot  maintain  bill  of  interpleader,  77. 

when  may  join  in  action  to  enforce  payment  of  legacies 
against  devisee,  78.  ^^. 

may  not  maintain  action  for  legacy  before  payable,  78,  ". 

in  proper  case  may  maintain  suit  for  preservation  of,  73,  ^-. 

when  must  be  made  parties  plaintiff  in  suit  by  executor  to 
recover  legacy  charged  upon  laud,  78,  ^K 

whm  each  mav  sue  sei^arately  for  his  share  collected  bv 
agent,  78,  ^3." 

residuary,  necessary  parties  to  bill  for  account  of  personal 
assets  of  decedent.  22,  ^''. 

necessai-y  party  to  suit  to  subject  assets  devised,  to  pay- 
ment of  debts  of  decedent,  22,  -•*,  et  seq. 
residuary,  necessary  party  when  question  of  lapse  of  legacy 

arises,  22,  ^^. 
residuary,  bill  to  recover  legacy,  necessary  parties,  22.  ■*' . 
when  no't  necessary  party  to  suit  to  recover  trust  funds  of 

the  executor,  22.  -^ 
are  necessary  parties  to  bill  to  set  aside  will.  22,  '^. 
when  wife  may  not  intervene  in  suit  by,  110,  ^*^. 


444  INDEX. 

Leg£,l  delays,  -when  defendant  not  entitled  to,  for  answering, 

§  71,  'Jy. 
Legal  effect  of  contract  made  by  agent,  S5,  ^'^,  ^'. 
Legal  proceedings,  who  are  bound  by,  7.  i. 
extent  of  meaning  of  term,  parties,  7,  ^. 
who  included  in  term,  privies,  7,  ^. 
Lessee.    See  TENA^'T. 

when  may  file  bill  of  interpleader,  114,  i^. 
Lsssor.    See  "Landlokd. 
Letters,  testamentary,  when  failure  to  take  out,  by  executcr  in 

foreign  state,  effect,  76. 
Levy,  taking  property  from  officer  after,  right  of  action  in 

time,  36,  •*«. 
of  attachment,  failure  of  sheriff  to,  liability,  51,  ^c,  (^t  seq. 
Liability,  of  city  for  leaving  open  excavation  'in  public  com- 
mon, 44,  '. 
of  city  to  be  sued  for  neglect  to  perform  public  duty, 

44,  1. 
of  city  with  respect  to  sewers,  44,  ^,  et  seq. 
of  city  to  repair  streets,  change  grade  of,  etc.,  44,  »,  et  seq. 
of  city  for  negligent  use  of  public  water  works,  44,  ^■^. 
of  common  carrier  for  carriage  of  goods,  extent  of  time 

of,  87,  8,  et  seq. 
of  receiver  as  common  carrier,  52,  2t. 
of  ioint  defendants  in  action  on  contract  must  be  proved, 

97,  1,  et  seq. 
of  corporation  for  acts  of  agents,  servants,  etc.,  91,  22, 
of  debtor  after  notice  of  the  assignment  of  non-negotiable 

chose,  34,  ^,  et  seq. 
of  infant  for  tort  same  as  adult,  59,  ^  d  seq. 
of  insane  jierson  upon  contracts,  62,  **. 
of  insane  person  for  torts,  62,  ^*. 
joint  and  several,  judgment  entered  against  persons  over 

whom  jurisdiction  acquired,  97,  ^". 
of  judge  of  court  of  general  jurisdiction  for  judicial  acts, 

none,  49,  ^. 
of  justice  of  the  peace  for  official  acts,  49,  ^,  et  seq. 
for  continuance  of  nuisance,  30,  ^*. 

of  partner,  notice  must  be  given  in  order  to  limit,  89,  ^^. 
of  public  officer  to  suit  of  private  person.  47,  ■*. 
of  receiver,  for  goods  entrusted  to  care  of,  52,  '^,  et  seq. 
for  defective  condition  of  school-house,  none  independent 

of  statute,  46,  25,  et  seq. 
of  sheriff  for  failure  to  levy  attachment,  51,  ^^,  et  seq. 
personal,  of  trustee  for  loss,  etc.,  to  trust  property,  33,  **. 
of  trustees,  joint  for  trust  funds,  33,  ^^, 
of  trustees  under  will  upon  building  contract,  personal. 


INDEX.  445 

Lien.    Sej  Vendor's  Lien. 

equitable,  suit  to  enforce,  how  jurisdiction  obtained  over 

defendant,  non-n  sident,  ^  11,  ^. 
foreign  judgment  creditor  'must  ha-ve,  to  sue  to  subject 

debtor's  land  to  payment  of  debt,  29,  ''. 
of   judgment  revived,   effect  on    land    transferred   while 

dormant,  105,  '■^. 
when  judgment  creditors  may  unite  in  suit  to  enforce,  06,  *•. 
of  judgment  creditors,  all  entitled  to  be  parties  to  suit  to 

subject  property,  5,  ■*. 
upon  land,  suit  to  enforce,  who  may  be  made  parties,  27,  ^. 
for  purchase  price  of  land,  suit  to  enforce,  necessary  par- 
ties, 27,  2,  et  Sf^q.  "    < 
laborers  up  n\  ligs,  suit  to  enforce,  when  owner  of  need  not 

be  party.  27,  ^^. 
of  material  men,  when  may  be  enforced  in  joint  suit,  96,  i". 
mechanic's.     See  Mechanic's  Lien. 
mechanic's,  death  of  defendant  in  proceeding  to  foreclose, 

abates,  107,  '«. 
contract  of  husband  and  wife  to  execute  mortgage,  when 

treated  as,  equitable,  69,  *^. 
transfer  of  note  secured  by  mortgage,  assignee  may  sue 

upon  and  enforce,  35,  ■^",  it  seq. 
for  assessment  on   lut  for  improvement  of  street  in  San 

Francisco,  who  may  enforce,  34,  '**. 
for  rent,  when  assignee  of  note  given  for,  may  recover 

from  purchaser  of  tenant's  crop,  79,  ^''. 
vendor's,  administrator  may  enforce,  73. 
when  one  trustee  may  sue  alone  'to  enforce,  making  co- 
trustees defendants,  32,  ^^,  et  seq. 
Lienholder,  elder  not  effected  by  suit  of  younger  unless  made 

party  thereto,  7,  i^. 
when  elder  may  be  made  party  to  suit  of  junior.  5,  ^. 
younger  properly  party  to  suit  by  the  elder,  7,  ^^. 
prior,  need  not  be  party  to  suit  to  enforce  mechanic's  lien, 

27,  i^ 
necessary  parties  to  suit  to  set  aside  mortgage  deed  ol 

trust,  etc.,  26,  '^'\  et  seq. 
proper  parties  to  suit  to  foreclose  mortgage,  27,  ■"5,  et  seq. 
Life  of  a  corporation,  effect  on  suits  commenced  during  period. 

90,  •^•^. 
Limitations,  statut3  of,  general  appearance,  when  does  nol 

waive,  16.  '. 
when  assignee  of  bankrupt  may  not  avail  himself  of,  53,  ^*. 
when  intervenors  may  not  assert,  111,  ^. 
when  claim  barred,  cannot  be  recovered  against  surety  oi 

administrator,  86,  -•'. 
effect  of  new  promise  on  parties  to  note,  35,  ^-. 
Part  IKS—  3S 


^6  INDEX. 

limitations,  Statute  oi— Continued. 

party  not  deprived  of  rights  under,  by  supplemental  plead- 
ings, §  8,  ^". 
rights  may  be  waived,  8,  ^9. 

how  operates  upon  a  statutory  right  of  action,  8,  ^i,  el  seq. 
special  statute  in  relation  to  abatement,  is  in  nature  of 

special,  105,  ^^,  et  seq. 
stipulation  making  person  party,  effect,  7,  ^^. 
no  one  to  assert  it,  effect  on  time,  8,  22. 
■\vhen  trustee  may  not  avail  himself  of  bar  of,  33,  ^3,  et  seq. 
Liquors,  sale  of,  seller  and  owner  of  premises  liable  jointly, 

98,  ^,  et  seq. 
Loan,  payment  of  price  of  goods  to  agent  before  due,  may  be 

treated  as,  85,  ^'^. 
Logs,  lien  of  laborers,  suit  to  enforce,  when  owner  need  not  be 

party,  27,  is. 
Loss,  when  insurance  company  may  sue  wrong-doer  for  amount 

of,  90,  19. 
Lost  note,  assignee  of  may  sue  in  own  name,  35,  ''^*,  et  seq. 
Lost  property,  when  is  lost,  87,  ^^,  et  seq, 

wlio  entitled  to  custody  of,  87,  ^^,  et  seq. 
Louisiana,  absentee,  who  is,  29,  ^i. 

joint  obligor  may  be  sued  separately,  97,  ^. 
Machinery,  unsafe,  lialulity  of  master  to  servant  for,  5,  *. 
Makers,  of  note,  what  defenses  he  may  interpose,  84,  i",  et  seq. 
and  indorser  may  be  joined  as  defendants  in  action  upon 

note,  97,  2^,  et  seq. 
of  note,  judgment  may  betaken  against,  and  action  dis- 
missed as  to  indorser,  97,  ^a,  et  seq. 
co-makers  of  note  given  for  price  of  land,  when  may  sue  for 
recision  of  contract,  96,  ^K 
Mail,  service  of  defendant  by,  insufficient,  13,  2,  pt  seq. 
Majority,  infant  attains,  pending  suit  should  be  made  sole 
party,  57,  *. 
after,  infant  may  sue  to  set  aside  contract  of  sale  of  interest 
in  realty,  57,  ^*. 
Mala  fides,  only  defense  to  action  by  holder  upon  note,  35,  ^'\ 
Malicious,  act  done  upon  land  by  owner,  no  action  lies  in  favor 
of  adjoining  owner,  80,  '. 
burning  of  building,  amount  of  recovery,  what  does  not 

affect,  38.  ^*. 
public  officer  not  liable  for  judicial  acts  even  though, 

49,  ". 
prosecution,  right  of  action  for,  not  assignable,  38,  ^\ 
prosecution,  corporation  liable  for,  91,  2«. 
prosecution  of  wife,  who  may  sue  for,  65,  '^'^,  et  seq. 
Mandamus,  only  remedy  for  enforcement  of  claim  against 
county  allowed  for  full  amount,  42,  ^K 


INDEX.  4i7 

Mandanms  —  Continued. 

by  county  against  it  officers,  party,  ^  5,  ". 

right  of  intervention  in,  109,  i^. 

when  will  not  lie  against  officers  of  town  to  compel  to 

rebuild  bridge,  46,  ^i. 
death  of  petitioner,  after  appeal  causes  abatement,  lOS,  ". 
to  enforce  common  law  or  act  of  legislature,  who  may  be 

relator,  30,  i. 
stockholder  may  enforce  right  to  inspect  books  of  corpora- 
tion by,  D3,  \ 
stockholder  may  enforce  publication  of  "statement  and 

report"  of  corporati<m  by,  93,  ". 
Managing  partner.     See  Part>er. 
Marital,  portion,  suit  to  recover,  heirs  must  bo  made  parties, 

22.  '^'K 
Marriage,  agreement,  bill  to  impeach  bv  husband,  wife  made 

defendant,  6i,  ». 
action   for  breach  of  promise,  when  abates  on  death  of 

defendant,  107,  ^a. 
breach  of  promise  of,  infancy,  when  good  defense.  59,  ^. 
must  have  been  to  support  action  crim.  con,,  15,  ^^,  et  seq. 
deceit  in  inducing  plaintiff  to  contract,  when  action  abated, 

107,  at^. 
of  widow,  pending  suit  for  dower,  husband  made  partv, 

6G.  i^. 
of  feme  sole  plaintiff,  effect,  107,  ^^ 
of  female  plaintiff  pending  suit,  husband  properly  made 

party,  64,  *. 
of  female  party,  mere  suggestion  sufficient  to  authorize 

joinder  of  husband,  63,  i^. 
of  persons  under  age,  penalty,  money  paid  as,  justice  of 

peace  cannot  recover  amount  of,  40," '." 
of  woman,  defendant  in  action  for  partition,  husband  not 

made  party,  effect,  7.  ^*. 
of  female  plaintiff  in  action  for  slander,  husband  should  bo 

made  party,  65,  ^^. 
tort  of  wife  before,  must  be  valid  to  make  both  husband 

and  wife  liable,  70,  ^,  et  seg. 
for  trespasses  upon  lands  of  wife  before,  joint  action  by 

hnsl)and  and  wife,  GG,  -^. 
Married  woman.    See  Wife. 

cannot  sue  or  be  stied,  general  rule,  G3,  "^'. 
executrix,  husband  is  properly  joined  with  in  suit  to  re- 
cover assets  of  estate.  22,  *>. 
when  is  necessary  party  to  a  suit.  21,  ^*,  et  seq. 
Master,  rule  as  to  liability  to  servant  for  injuries  received  iu 

course  of  employment,  85,  •*,  et  seq. 
may  sue  one  who  entices  away  servant,  83,  *. 


US  IXDEX. 

Master — Continued. 

when  liable  for  incompetence,  servant  furnished  by,  ^  83.  '-, 
Avlien  may  sue  servant  for  loss  from  negligent  acts,  83,  ^^. 
juintlv  liable  with  contractor  for  negligent  acts  of  em- 
ployees, 83,  '-^u. 
not  liable  to  servant  for  negligence  of  co-servant.  83,  26. 
when  liable  to  servant  for  personal  negligence,  83,  ^a. 
liability  for  services  to  servant,  83,  '■^'',  ft  seq. 
when  may  sue  for  loss  of  service,  83,  i^. 
when  liable  for  tortious  acts  of  servant,  83,  ^^ 
when  not  liable  for  tortious  acts  of  servant,  83,  ^'. 
after  work  accepted  from  contractor,  liable  for  defects,  etc., 

83,  ^1. 
Master  and  servant,  generally,  suits  by  and  against,  83. 
when  both  liable  for  acts  of  servant,  83,  ^'^. 
when  not  liaV)le  jointly  for  acts  of  servant,  83,  -^. 
no  joint  action  against,  for  negligent  acts  of  servant  in 

absence  of  master,  85,  '', 
action  for  seduction  of  child  founded  upon  theory  of,  83,  i". 
relation  of,  must  exist  to  maintain  action  for  seduction  of 

child,  83,  6. 
Mateship,  vessels,  no  joint  actiou  by,  for  conversion  of  whale 

taken  by  one,  95,  *. 
Materials,  furnished  city,  what  no  defense  in  action  against 

for  price,  44,  22. 
furnished  to  build  church,  corporation  liable  for,  91,  '-'u. 
furnished  vessel,  part  owners  liable  for,  81,  2^,  23_ 
men.  Avhen  lien  of  may  be  enforced  in  joint  action,  96,  ^°. 
Mechanic's  lien,  may  be  assigned,  assignee  mav  sue  in  own 

name,  34.  2u. 
death  of  defendant  in  proceeding  to  foreclose,  abates,  107,  ^y. 
mere  agent  need  not  be  party  to  suit  to  enforce,  27,  ^^. 
action  to  enforce,  contractor  or  sub-contractor  proper  partv, 

27,  15,  ei  seq. 
prior  lienholder  need  not  be  party  to  suit  to  enforce,  27,  '". 
foreclosure  of,  owner  of  premises  only  defendant,  27,  ^'^. 
Avhen  owner  of  premises  not  necessary  party  to  action  to  • 

enforce,  27,  ^*. 
Member,  of  common  body,  when  receiver  may  sue  former  to 

recover  debt  due  latter,  52.  ^^. 
of  corporation,  citizenship  of,  10,  •*. 
of  unincorjiorated  association,  wlien  may  sue  others  for 

contrilnition,  92,  *. 
of  unincorpoi-ated  association,   when   latter  mav  sue  in 

trover,  92,  &. 
cf  unincorporated  association,  very  numerous,  how  may 

sue,  92,  1,  et  seq. 
of  unincornorated  association,  liabilitv  of,  92,  '. 


DvDEX.  419 

Mesne  profits,  when  tenant  may  sne  co-tenant  for,  ?  82,  ^8. 
Mining  claim,  -who  may  intervene  in  suit  for,  110,  -". 
Minor.     See  Infant. 

who  may  sue  for  services  of,  83,  ^ 
Misdemeanor,  when  injury  results  from  act  made,  generally 

subject  of  action,  38,'  ^i. 
Misdescription,  in  deed  running  through  several  conveyances, 
suit  to  correct,  necessary  parties.  26,  i^,  ft  >ieq. 
of  premises  equitable  deftn»e,  ejectment,  necessary  parties, 
26.  3^. 
Misjoinder,  of  parties,  generally,  100. 

of  parties,  who  may  object,  101,  ^,  et  seq. 

of  formal  parties  to  bill  in  equity,  effect.  103,  i. 

parties  asserting  separate  and  distinct  interests  demurrer 

will  lie,  100,  ^ 
plain tilfs,  eHfect  of,  in  action  of  assumpsit,  102,  ^ 
of  plaintitis  in  equity,  effect,  102.  **,  et  f^eq. 
of  plaintitEj  in  action  for  tort,  eftcct,  102,  *,  et  seq. 
of  parti^-s  plaintiff,  objection,  when  made  bv  demurrer, 

100,  K  et  seq. 
of  plaintiffs  met  by  demurrer  or  answer,  102,  -. 
of  plaintiff,  objection  cannot  be  raised  by  instruction,  100, ". 
of  parties  plaintiff",  may  be  reached  bv  motion  to  elect, 

100,  *. 
plaintiff,  motion  to  strike  out  name  of  one.  proper,  102,  ^*. 
plaintiffs,  no  community  of  interest  between,  fatal,  102.  ^  \ 
of  plaintiffs,   objection'  should  be  made  before  hearing, 

102,  11. 
plaintiffs,  objection  raised,  bill  not  dismissed  unless,  102,  i-*. 
of  plaintiffs,  when  objection  waived.  100.  =,  et  seq. 
of  defendants  in  action  upon  contract,  eft'ect,  103.  ^  et  seq. 
of  defendants  in  action  for  tort,  immaterial.  103.  i^,  et  seq. 
of  defendants,  objection  for,  how  raised.  100,  i'-*,  et  seq. 
Misnomer,  suit  against  corporation,  effect.  91,  ^. 
alleged,  true  name  must  be  proved.  3.  i-. 
waived  by  pleading,  general  issue,  3,  i^. 
Mistake,  salt  to  reform  contract  on  gi'ound  of,  26,  i^,  et  seq.. 

to  entitle  party  to  relief  must  be  mutual,  9,  ^",  et  seq. 
Money,  when  administrator  not  liable  to  stranger  for,  75. 

overpaid  to  agent,  when  fact  of  payment  to  principal  no 

defense,  85,  i*. 
when  full  defense,  85.  i^. 
fraudulently  paid  by  bankrupt,   assignee  of,  may  sue  to 

recover.  53,  •». 
paid  on  illegal  assessment,  citv,  mav  be  recovered  back, 

44,  -'^  et  seq. 
overpaid  to  judgment  creditor,  sheriff"  may  recover  back, 
51,  ". 


#50  INDEX. 

Money —  Continued. 

had  and    received,    trustee,   when  liable    to    action    for, 

i  33,  '••'. 
settlement  of  guardian  ^Tith  infant  ward,  57,  i^,  et  seq. 
received  by  guardian  of  lunatic,  when  no  action  against 

latter.  62,  ^i. 
infant  liable  after  majority  for,  tortiously  taken  during 

infancy,  59,  ^^  et  seq. 
paid  for  redemption  of  lands,  when  county  not  liable  for, 

42,  «. 
X)aid  to  holder  of  note  given  to  compound  wine  cannot  be 

recovered  back,  35,  ^. 
paid  on  note,  fraud  on  composition  creditors,  when  may 

not  be  recovered  back,  34,  ^''. 
purchase,   paid  for  land,   when  considered  in  equitv  as 

land,  78,  ^^ 
paid  county  officer  for  services,  recovered  back  when,  41,  ^. 
in  hands  of  public  officer,  when  no  demand  necessary  to 

recover,  47,  ^^ 
paid  to  public  officer  for  services,  when  may  be  recovered 

back,  47,  i". 
public  officer  receives  in  official  capacity  must  pay  over  to 

successor,  47,  ^,  et  seq. 
officer  of  town  refuses  to  pay  over  to  successor,  town  may 

sue  for,  45,  ^. 
failure  to  pay  over  borrowed,  when  breach  of  bond  of  re- 
ceiver, 52,  ^". 
failure  of  sheriff  to  pay  over,  collected  on  execution,  no 

action  until  demand,  51,  ^'^. 
received  in  excess  of  tax,  penalty  and  cost  received  by  tax 

collector,  treasurer  may  sue  for,  50,  ^. 
paid  under  illegal  tax,  when  city  may  not  recover  back 

from  town,  46,  *>. 
ilL  gal  tax,  collected  for  school  purposes,  recovered  back 

from  whom,  46,  '^'^,  et  seq. 
co-tieasurer  receives  and  fails  to  pay  over,  countj'-  may  sue 

on  bond  of,  50,  *". 
received  by  town   uxx)n  unauthorized  issuance  of  bonds 

may  be  recovered  back,  46,  *. 
town  njust  be  party  defendant  to  bill  to  restrain  its  treas- 
urer from  paying  out,  46,  ^. 
received  by  X.  to  use  of  A.,  A.  may  sue  for,  37,  «. 
delivered  to  one  for  use  of  another,  latter  may  sue  for,  87,  ^9. 
borrowed  during  coverture  by  husband,  wife  may  sue  for 

after  divorce,  67,  ^^ 
of  wife,  liuslwnd  fraudulently  loans,  she  may  recover,  65,  *o. 
furnished  wife  deserted  by  husband  when  recovered  from 

latter,  equity,  68,  2o. 


IXDEX.  451 

Mortgage,  and  bond,  foreign  administi*ator,  may  not  transfer, 

so  as  to  enable  assignee  to  sue,  35,  ^  ^^ 
assignment  of,  does  it  carry  debt,  3G,  -'■. 
contract  of  husband  and  wife  to  execute,  will  be  enforced, 

09,  i». 
to  seT»eral  to  secure  several  debts,  how  enforced.  82.  ^'. 
deed  to  land  when  sought  to  be  declared,  purchasers  pro]> 

erly  made  defendants,  99,  *. 
wife  executes  with  husband  sufficient  reason  for  making 

defend  mt  in  action  upon,  69,  •^•',  et  seq. 
suit  against  estate  upon,  75. 
administrator  may  bring  suit  to  foreclose,  73. 
foreclosure  of.  adverse  claimant  not  proper  party  to,  27,  ^o. 
foreclosure,  Avhen  creditors  will  not  be  allowed  to  become 

defendants  in,  101,  ^'^. 
foreclosure  of,  when  wife  made  defendant,  69,  ^■*,  ei  seq. 
homestead  right,  suit  to  foreclose,  wife  should  be  party, 

27,  ••;«. 
by  husband  and  wife,  latter  necessary  party  to  suit  to  fore- 
close, 27,  2<. 
foreclosure  of,  proper  joinder  of  parties  to  suit,  27,  -\ 
suit  to  foreclose,  lieuholders  properly  made  parties  to.  27.  •*6. 
foreclosure  of,  mortgagor  as  rule  necessary  party,  27,  -3. 
rrrpresentative  of  deceased  mortgagor,  when  made  party  to 

suit  to  foreclose,  27,  •^^,  et  seq. 
suit  to  foreclose,  when  heir  of  mortgagor   made    party, 

27,  ^■^. 
mortgagee  necessary  party  to  suit  to  foreclose,  27,  ^a. 
mortgagee,  not  necessary 'party  to  suit  to  foreclose,  when 

has  disposed  of  interest,  27,  ^o. 
administrator  of  mortgagee,  party  to  foreclosure,  27,  •*'. 
foreclosure  of.  heir  of  mortgagee  not  necessary  party  com- 
plainant, 27,  **. 
foreclosure  of,  necessary  parties  to,  27,  ^^. 
note  part  of  makers  only,  execute,  relief  bv  foreclosure, 

99,  '. 
note  and.  suit  to  foreclose,   same  person  may  be  party 

plaintiff  and  defendant.  6,  ^c. 
note  by  Y.,  mortgage  by  X.,  no  personal  judgment  asked,  Y. 

not  necessary  party  to  foreclosure  suit,  27.  --. 
holders  of  several  notes  secured  by,  may  join  in  suit  to 

foreclose,  or  sue  separately,  96,  ',  et  seq.\  S-6.  -". 
note  secured  by,  holder  of  note  may  foreclose  lien,  35,  ^". 
cquitv,  equitable  owner  of  notes  secured  by,  proper  person 

to  foreclose,  36,  26. 
foreclosure  of,  owner  of  equitv  of  redemption   should  be 

party.  57.  ^i. 
by  several  to  part  of  the  number,  latter  may  foi-eclose,  36,  -''. 


452  rs'DEX. 

Mortgage  —  Continued. 

taken  to  secure  firm  debt,  generally  ail  partners  unite  in 

suit  to  foreclose,  §  27,  ^■•^,  et  seq. 
to  secure  purchase  price,  wife  of  mortgagor  not  necessary 

party  to  suit  to  foreclose,  27,  '^'^. 
foreclosure  of.  pendente  lite  purchasers  need  not  be  narties 

to  suit,  27,  ^-. 
trust,  Kuit  by  trustee  to  foreclose,  cestui  need  not  be  party, 

32,  1^ 
foreclosure  of  by  cestui,  trustee  should  be  party,  27,  ^*. 
when  lioth  trustee  and  cestui,  must  be  parties  to  suit  to 

foreclose,  27,  ^^,  et  seq. 
foreclosure  suit,  when  error  to  decide  iipon  validity  of,  8.  24. 
of  personal  property,  rights  of  action  of  mortgagee  under, 

36,  ^",  et  seq. 
when  mortgagor  cannot  proceed  against  receiver  to  cancel, 

52,  ai. 
note  of  X.,  indorsed  and  secured  by  mortgage  of  Y.,  both 

joined  properly,  27,  ^^. 
generally  not  sufficient  evidence  of  ouster,  82,  ^",  ^n.  -i. 
promise  to  third  person,  latter  cannot  sue  on,  86.  ^i. 
penalty  for  failure  to  discharge,  of  record,  executor  not 

liable  for,  75. 
last  assignee  of,  when  only  necessary  defendant  in  bill  to 

redeem.  28,  *. 
suit  to  set  aside,  necessary  parties  to.  26,  ^-,  et  seq. 
stranger  paying,  without  taking  assignment,  when  may  not 

be  substituted  in  place  of  mortgagee.  34,  ^^. 
Mortgaged  premises,  when  executor  of  deceased  mortgagor 

necessary  party  to  suit  to  recover,  22,  i". 
when  purchaser  of,  need  not  be  party  to  foreclosure  suit, 

7.  ^-•.  27.  -^'K 
Mortgagee,  of  land,  when  not  proper  party  to  suit,  24,  ^''. 

of  personal  property  may  sue  for  damage  to  his  interest, 

36,  '^^. 
of  chattels,  when  may  maintain  detinue  against  mortgagor, 

36,  a-', 
are  part  of  mortgagors,  may  foreclose  mortgage.  36,  '^. 
when  should  be  party  to  suit  of  foreclosure,  27.  '^,  et  seq. 
of  personal  property,  when  may  maintain  replevin,  3G,  ^'. 
should  be  parties  to  bill  to  redeem,  28,  ^i. 
stranger  paving  mortgage,  when  may  not  be  substituted  in 

place  of,  34,  i«. 
Mortgagor,  when  should  be  party  to  foreclosure  suit,  7,  ^i. 
usnully  necessary  party  to  foreclosure  suit,  27,  '^^. 
representative  of  deceased,  w^hen  made  party  to  foreclosure 

suit,  27,  38,  et  seq. 
when  not  necessary  party  to  foreclosure  suit,  27,  ^K 


rsDEX.  453 

Mortgagor  —  Continued. 

Mite  of,  when  not  necessaiy  party  to  suit  of  foreclosure, 

I  27,  -^. 
aud  mortgagee  necessary  parties  to  foreclosure.  27,  ^*. 
pare  of,  are  mortgagees,' mortgage  maybe  foreckwed.  3G,  -^. 
when  need  not  be  made  party  to  bill  to  redeem,  2)5,  *• 
of  personal  property,  when  mortgagee  mav  maintain  detinue 

against,  36,  a-.     ' 
of  insured  property,  when  not  necessary  party  to  suit  on 

p  )liey  of  insurance  for  loss,  2i,  ^**. 
Motion,  auy,  made  in  a  cause  other  than  to  jurisdiction  of 

court' amounts  to  an  appearance,  14,  2,  et  spq. 
special  appearance  should  be  limited  to  the  sp-cific  purpose 

to  be  reached,  14,  ^^. 
who  may  not  make,  in  an  action  except,  8,  -. 
to  elect,' misjoinder  of  parties  plaintitf  mr.v  be  reached  bv, 

100,  \ 
on  exprn-te,  court  may  appoint  guardian  for  insane  defend- 
ant, 62,  *. 
to  correct  a  judgment,  who  may  be  heard  on,  7.  ^-. 
to  make  parties,  no  error  from  omission  unless  made,  103,  ^'^. 
to  strike  out  name  of  party,  when  proper,  102,  ^^.  et  seq. 
ex  parte,  substitution   of'  administrator  as  pai'ty  by,  on 

death  of  plaintitf,  106,  -. 
for  substitution  of  party,  requisites,  103,  ^  etseg. 
Municipal  election,  injunction  to  prevent  payment  of  expenses 

of,  nccssary  parties.  2s,  33. 
Name,  full  christian,  should  be  inserted  in  pleading.  3,  ', 

law  knows  but  one  christian,  insertion  of  middle,  imma- 
terial, 3;  6. 
surname  only  set  forth  demurrer  will  not  reach  point,  3,  ^'^. 
person  described  C.  G.,  to  wit,  C.  P.,  amcndmeut  striking 

out  latter,  3,  ^*. 
letters  Jr.  no  part  of.  3.  5. 
Mav  and  Marv  not  identical.  3.  ^. 
suit  of  N.  C.  'instead  of  J.  N.  C.   not  void,  3.  i». 
misnomer  alleged,  proof  must  be  made  of  true.  3,  ^-. 
of  party  in  every  civil  action  must  be  set  out  in  record,  3.  '. 
party  must  be  described  by,  aud  not  by  description  of  the 

person,  4,  ^. 
of  plaintiff  in  caption  of  bill  is  not  enough,  1,  6. 
spelled  wrong  will  not  abate  writ.  3.  ^1. 
rights  of  a  party  must  be  vindicated  in  his  own,  3.  -. 
agent  suing  as,'  in  his  own,  should  disclose  that  of  his 

principal,  84,  ^. 
when  foreign  ambassador  may  sue  in  his  own,  in  our 

courts,  29.  ^. 
assignee  of  bankrupt  may  sue  in  own,  53,  ^ 


454  INDEX. 

"S  Sime—  Conthmed. 

oflQcial,  chancellor  sues  in,  upon  bond  given  him  in  liis 

ofticial  capacity,  §  49,  ^. 
■when  coauty  may  ssue  upon  an  official  bond  in  its  own, 

41,  6. 
bond,  to  justices  of  county  court  for  use  of  county,  suit  in, 

49,  5. 
in  whose,  suit  brought  upon  official  bond,  36,  *,  et  seq. 
of  State,  suit  upon  official  bond,  39,  i",  et  seq. 
bond  to  State  to  use  of  town,  latter  may  not  sue  in  own, 

45,  8. 
of  parties  to  suit  upon  bond  of  county  treasurer,  50,  '. 
action  upon  bond,  given  town,  subsequently  divided  belongs 

to  new  town,  45,  ^. 
of  incorporation,  city  sues  in,  3,  ^^  43,  '. 
city  sues  in  own,  upon  contract  to  A.  B.  as  treasurer,  43,  ^. 
assignee  ot  chose  in  action  may  sue  in,  of  assignor,  8,  ^. 
chose  in  action  attached,  sherift  may  not  sue  upon  in  own, 

51,  K 
action  upon  contract  brought  in  whose,  31,  ^,  et  seq. 
when  agent  may   bind  principal  by  written  instrument 

made  in  own,  85,  ^^. 
when  agent  contracts  in  own,  for  undisclosed  principal, 

binds  both,  85,  ii. 
person  beneficially  interested  may  sue  in  equity  upon  con- 
tract, 31,  ». 
corporation  only  known  by  corporate,  91,  '^. 
ol  corporation,  when  it  could  exist  under  either  of  two 

statutes,  presumption  as  to,  SO,  ^. 
corporation,  equity  will  enjoin  wrongful  appropriation  of, 

corporation  must  sue  and  be  sued  in,  SO,  -^ 

corporation  changing,  may  sue  in  new,  proper  averments 

being  made,  90,  '. 
suit  against  corporation,  effect  of  misnomer,  91,  ',  et  seq. 
of  corporatian,  changed  pending  action,  3,  ^",  91,  ^. 
in  which  countv  sued,  statute  relative  to  must  be  strictly 

followed,  42,  \ 
in  Georgia  county  can  only  sue  in  its,  41,  ^. 
in  Georgia  county  sued  in,  42,  ^. 
death  of  party  after  judgment,  who  appeal.  108,  '. 
death  of  joint  defendant  or  plaintiff  within  a  year  after 

judgment,  execution,  how  issued,  105,  '. 
of  defendant  misnomer,  when  objection  made,  16,  ^". 
of  infant  wife,  when  next  friend  mav  not  sue  in,  56,  ^*. 
defense  of  action  of  ejectment,  in  wliose,  conducted,  80,  ", 
idiots,  lunatics,  infants  sue  and  sued  in  own,  3,  *. 
lights  of  infants  should  be  enforced  in,  56,  ^  et  seq. 


TSVTX.  455 

Name  —  Continued. 

Avheii  order  appointing  guardian  ad  Idem  for  infant  defend- 
ants without  naming  void,  ^  58,  ^^. 

guardian  of  infant  may  not  sue  for  lands  of,  in  own,  57,  '. 

guardian  in  socage  of  infant's  lands,  may  sue  in  own.  57,  ". 

unlawful  detainer  should  be  brought  in  infants,  57,  ^". 

insane  person  may  sue  in  own.  CI,  2. 

when  action  brought  in,  of  lunatic,  of  guardian,  Gl,  ^. 

of  lunatic  in  suit,  joinder  of  with  guardian,  mere  formal- 
ity, 61,  •>,  et  seg. 

of  guardian,  omitted  in  suit  by  insane  person,  matter  of 
abatement,  Gl,  i". 

person  found  insane  by  expaHe  proceeding,  wlien  may  sue 
in  own,  Gl,  ^. 

upon  what  items  insolvent  may  not  sue  in  own,  after  dis- 
charge, 55,  ^^. 

of  party,  interest  in  action  transferred,  pending  suit  con- 
tinued in,  9,  ^. 

plaintiff  transfers  interest  pending  suit  continued  in  whose, 

34,  8,  et  seq. 

one  joint  plaintiff  transfers  interest  to  co-plaintiff  latter 
continues  suit  in  his,  107,  **. 

interest  transferred  after  judgment,  appeal  taken  by 
assignee,  lOS,  1*. 

when  person  bound  by  judgment,  although  not  party  to 
action  by,  7,  i",  et  seq. 

suit  upon  a  judj::ment,  who  may  maintain,  36,  ■*',  et  seq. 

judgment  creditor  may  file  bill  in  own,  equity  to  reach 
debtor's  property,  36,"  ^*. 

agent  to  sell  land,  substitutes  another  under  power,  cannot 
sue  for  price,  84,  ^i. 

mandamus  to  enforce  private  right,  in  whose  name  main- 
tained, 30,  =^. 

assignee  of  mechanic's  lien  may  sue  in  own,  34,  -". 

liolcler  of  legal  title  to  note,' action  upon  should  be  in, 

35,  '. 

when  bankrupt  may  sue  in,  upon  note  transferred  to  by 
assignee,  53,  '^ 

agent  may  sue  collector  for  proceeds  of  notes  placed  in  his 
hand>!,  in  his  own,  84,  i-*. 

use  of  in  notes,  bills,  etc.,  exception  to  rule,  3,  **. 

note  given  to  guardian  of  infant,  when  former  may  sue  in 
own,  57,  6. 

of  party,  motion  to  strike  out,  when  proper,  102.  ^s,  ct  seq. 

of  plaintiff,  addition  to,  what  stirplusage,  4,  ^,  tt  seq. 

plaintiff  declared  to  be  insolvent  debtor,  suit  may  still  pro- 
ceed in,  55,  3. 

partnership  suit  by,  in  whose,  brought,  88,  ^  et  seq. 


456  INDEX. 

Name —  Continued. 

when  receiver  of  partnership  iDropertv  must  sue  in  firm, 
?  88,  11. 

suit  against  partnership,  may  bo  in  what,  89.  ^.  d  seq. 

new  firm,  partners  of  new  firm,  how  sued  for  debts  of  old 
firm,  89,  ^«. 

of  partner,  appeal  in  name  of  partnership,  when  substitu- 
tion of  proper,  106.  '^^. 

of  all.  one  of  seven.l  joint  payees  may  sue  in,  36,  it". 

common  law,  person  sue  and  be  sued  in  reputed.  3,  ^. 

of  probate  .indge,  action  in,  effect  of  resignation  of  upon 
action.  49,  -,  et  seq. 

public  officer  sues  in  what,  47,  '^,  et  seq. 

corporate,  public  officers  declared  bv  statute  to  be  sued  in, 

47,  ». 

purchaser  of  property  of  bankrupt,  when  may  sue  for  in 

own,  54,  8,  et  seq. 
every  action,  general  rule,  must  be  in,  of  real  party  in 

interest,  31,  ^. 
receiver  may  sue  in  whose.  52,  ^.  et  seq. 
■when  action  for  trover  brought  in  receivers,  when  not, 

52, ». 
ai)pointment  of  receiver  pending  action,  suit  continued  in 

whose,  52,  ",  et  seq. 
receiver,  death  of  pending  suit,  continues,  successor,  52,  i^. 
suit  against  school  district  should  be  in  its,  46,  ^". 
State  usually  sues  in  own,  39,  ^. 
of  State,  attorney-general  may  use  to  pursue  any  remedy, 

48,  ^,  et  seq. 

of  State,  when  will  not  be  permitted  to  be  used,  39,  '. 

superintendants  of  poor,  in  what  name  may  sue,  90,  *'. 

of  office,  siipervisoi  8  of  town,  meaning,  45'  ^,  et  seq. 

of  town,  action  brought  in,  probably  proper,  45,  ^,  et  seq. 

town  when  incorporated  should  be  sued  in  its,  46,  i. 

of  individual  trustees  set  out  in  suit  against  unincorporated 

town,  4G,  ^. 
of  trustee  of  express  trust,  note  held  in  suit  may  be  in,  32,  *. 
unincorporated  association  cannot  be  sued  by,  92,  ^. 
of   unincorporated  association,   changed  pending  action, 

effect.  92,  \ 
wife  deserted  by  husband,  when  may  sue  ^sfeine  sole,  63,  i^. 
wife  may  recover  separate  property  fraudulently  loaned  by 

husband  in  own,  65,  *". 
action  for  slander  of  Avife,  action  brought  in  whose,  65,  i^. 
writ  of  erro.'  prosecuted  in  whose,  108,  ^^,  et  seq. 
Named  a-;  defendant,  prrson  not  liable  as,  until  process  prayed 

against,  or  is,  1.  n,  i^. 
as  party,  person  not,  answer  filed  for  does  not  make,  1,  i*. 


INDEX.  457 

Named  —  Continued. 

a.^  partv  iu  bodv  of  petition,  and  treated  as  such,  sufficient, 

i  1,  '1^ 
in  the  record  when  jurisdiction  depends  upon  tlie  party  it 

is  the  one,  10.  ^. 
Natural  streams,  ill-constructed  culvert  over,  liability  of  city 

I'm-  injury,  4i,  ^'^. 
Navigable  streams,  bridge  over,  county  not  liable  for,  42,  >". 
Necessaries,  furnished  family,  husband,  as  rule,  liable  for,  GS, 

ly,  ef  seq. 
furnished  family,  wife  not  sued  alone  for,  after  death  of 

husband,  6S,  27. 
furnished  wife  deserted  by  husband,  latter  liable,  68,  ^*. 
furnished  wife,  wlien  husband  not  liable  for,  C8,  ^^. 
Necessary  party,  who  is,  is,  ^. 

who  IS  not.  to  a  suit,  20,  ^  et  seq. 

mere  agent  is  not,  to  suit,  unless  fraud  charged,  24,  '^'^. 

•when  assignor  is,  24,  3",  el  seq. 

to  action,  attorney  is  not  generally,  24,  '°'^,  et  seq. 

to  bill  for  an  account,  24,  ^. 

to  action  for  account  against  common  agent,  24.  ■*. 

to  bill  for  account  ot  personal  assets  of  estate  of  decedent, 

22,  a*,  et  seq. 
suit  by  ward  against  guardian  for  an  account,  24,  ' ,  et  seq. 
to  bill  for  account  by  infant  ward  against  guardian.  21,  ^. 
to  suit  for  partnership  accounting,  25.  ^,  et  seq.,  24.  **. 
creditors  secured  bv  deed  of  trust,  one  to  suit  for  account 

of  trust  fund.  23^  -^^ 
to  suit  against  trustee,  creditors  for  in  account,  payable  iu 

classes,  23,  ^'j,  et  seq. 
to  suit  for    account    against   administrator  of   deceased 

trustee,  fund  uncertain  in  amount,  23,  -'•'. 
to  suit  upon  joint  bond,  24,  -^S  et  srq. 
t)  suit  for  breach  of  contract,  24,  ''^'•^,  et  seq. 
to  suit  to  rescind  contract,  no  general  rule,  2G,  -•*,  et  seq. 
reform  contract,  mistake,  2(j,  i^,  et  seq. 
when  judgment  creditor  is  not,  suit  to  annul  convevance, 

26,  '^K 
to  suit  relating  to  rights  of  corporation,  25,  ^". 
to  suit,  corporations  consolidatid,  25,  -^. 
to  suit  of  stockholder  relating  to  corporation  assets,  25,  '^'^. 
bill  to  enforce   liability  of   stockholder  for    corporation 

debts,  25.  2",  el  seq. 
to  suit  to  dissolve  and  wind  up  corporation,  25,  -'. 
to  a  creditor's  bill.  24,  !*>,  et  seq. 
to  suit  to  reach  property  of  debtor,  24,  i^,  et  seq. 
to  suit  to  subject  lauds  of  debtor  to  pavment  of  his  debts, 

2u,  •'^  et  seq. 

P.\RTIKS  — 39 


458  INDEX. 

Necessary  T artj— Continued. 

to  bill  to  it-acli  property  of  judgment  debtor  in  hands  of 
heir,  g  24,  '^■^,  tt  st^q, 

to  suit  to  subject  property  devised  in  trust,  payment  of 
claim  of  creditor,  23,  ^*. 

to  suit  to  reacn  property  of  one  partner  and  apply  to  pay- 
ment of  firm  debt,  25,  ^2. 

to  suit  by  debtor  to  recover  collateral  securities,  24,  2. 

to  suit  to  cure  misdescription  deed,  26,  ^^  et  seq. 

to  suit  for  divorce,  when  trustee  is,  23,  ^". 

to  bill  to  reach  assets,  when  representative  of  deceased  co- 
executor  is  not,  22,  *3, 

when  distributee  is  not,  in  suit  to  recover  over  advances, 
22,  -'^ 

when  heirs  are,  to  suit  against  estate,  22,  ^^,  et  seq. 

to  suit  to  subject  assets  devised  to  payment  of  debts,  22, 2^. 

to  bill  for  settlement  of  estate  of  decedent,  22,  *«,  2'2,  y«. 

proceeding  to  set  aside  final  settlement  and  subject  lauds  of 
decedent  to  payment  of  debts,  26.  ^^ 

in  suits  relating  to  the  homestead,  26,  '^^,  et  seq. 

to  suit  for  injunction,  28,  ^,  et  seq. 

city,  injunction,  28,  ^s,  et  seq. 

bill  to  enjoin  action  at  law,  28,  *^. 

to  suit  relating  to  insolvent  estate,  24,  ^6.  ^ 

what  interest  must  exist  in  order  to  constitute,  18,  ^^. 

when  may  intervene  in  a  suit,  109,  22. 

to  suits  in  equity  relating  to  land,  26,  ^. 

to  action  of  ejectment,  26,  '°''^,  et  seq. 

to  suit  for  partition,  28.  ^'^,  et  seq. 

to  suit  to  quiet  title  to  lands,  26,  ^^  et  seq. 

to  suit  to  enforce  specific  performance  of  contract  to  con- 
vey land,  26,  *>,  et  seq. 

to  suit  by  devisee  to  recover  lands  devised  to,  22,  ^'. 

lands  of  decedent,  when  heir  need  not  be  joined  in  suit 
relating  to,  22.  »". 

to  suit  to  enforce  vendor's  lien  for  purchase  price  of  land, 
'll,'\  et  seq. 

to  bill  of  surety  to  subject  land  to  payment  of  bond  for 
price,  26,  »2. 

infant  is,  to  suit  to  rescind  contract  for  ptirchase  of  land, 
21,  1^. 

in  bill  to  recover  legacy,  22,  *',  et  seq.,  22,  ^^. 

when  legatee  of  funds  devised  is  not,  to  suit  to  recover 
from  executor,  22,  ^a. 

to  suit  to  recover  share  (assigned)  of  legatee  or  distributee 
in  estate,  22,  *«,  et  seq. 

to  suit  to  enforce  mechanic's  lien,  27,  J^,  et  seq. 
r^  to  suit  to  foreclose  mortgage,  27,  ^^.  et  seg. 


Es-DEX.  459 

Necessary  'Pa.rty—Contimied. 

TO  suit  to  set  aside  mortgagee's  deeds  of  trust,  etc.,  §  2G,  '■^'^. 

suit  relating  to  partnership,  25,  ^,  et  seq. 

to  suit  to  set  aside  conveyance  of  partnership  property  to 
trustee,  25,  ^'^. 

to  suit  for  dissolution  of  partnership,  25,  i*. 

to  bill  to  redeem,  28,  i,  et  seq. 

■who  are  not,  to  suit  to  enforce  trust,  23,  ^'. 

to  suit  to  establish  implied  trust  in  lands,  23,  ^^  et  seq. 

in  suits  relating  to  trust  funds,  23,  S    et  seq. 

general  rule  cestui  que  t)'ust  is,  to  suit  bv  or  against  tnistee, 
23,  ^,  et  seq. 

when  cestuis  que  trust  numerous,  23,  ■*. 

■when  heirs  of  deceased  trustee  not,  23,  ^t. 

trustees  are,  in  suits  relating  to  trust  funds,  23,  ',  et  seq. 

to  suit  by  creditor  to  subject  trust  property-  conveyed  to 
sureties,  23,  ^-. 

to  bill  for  appointment  of  new  trustee,  23,  -''. 

to  application  by  executor  of  deceased  trustee  for  appoint- 
ment of  new  and  accounting,  23,  ^. 

when  trustee  is,  to  suit  of  surety  against  principal,  23,  ^i. 

when  w;fj  is,  to  suit,  21,  i*,  et  seq. 
Negligence,  of  agents,  etc.,  of  corporation,  when  latter  bound 
by,  91,  22. 

of  decedent,  when  action  for  will  lie  against  personal  repre- 
sentative, 76. 

dis'inciion  between    invitation   to  come  upon   land  and 
license  to  use,  80,  ^. 

of  third  person  insurance  company  sustains  loss,  when 
action  accrues  in  favor  of.  38,  ^^. 

when  landlord  liable  to  tenant  for  non-repair  of  leased 
premises,  80,  ^,  et  seq. 

when  master  liable  to  servant  for  acts  of,  83,  '^,  et  seq.   ' 

of  railroad  company,  when  heir  mav  recover  for  death, 
107,  21, 

of  servant,  absence  of  master  no  joint  action  against  both, 
85,  '. 

servant  liable  to  master  for,  83.  ^^. 

action  for  personal  injury  resulting  from  does  not  survive, 
107,  23. 

when  tenant  liable  to  stranger  for  injuries  received  by  non- 
repair of  leased  premises,  80,  *,  ^. 
Next  friend,  idiots  may  sue  by,  Gl,  *. 

ditl'-rence  between  and  guardian  ad  lite7n,  56,  ^" 

for  infant  who  may  be,  56,  21. 

need  not  be  relative  of  infant.  56,  ^^. 

court  need  n^t  grant  permission  to  infant  to  sue  by,  56,  *2. 

of  infant,  aut'.iority  of  court  over,  56,  2-. 


460  INDEX. 

Next  "Eriendi—  Continued, 

infant  should  sue  by  guardian  or,  §  56,  ^,  et  seq. 

■when  infant  may  sue  by,  5G,  ^*^,  et  seq. 

infant  may  not  sne  hj,'in  forma  pauperis  56,  -■^,  et  seq. 

of  infant,  status  of,  56,  ^^,  et  seq. 

of  infant,  powers  in  an  action,  2,  ^^ 

of  infant  may  employ  attorney  to  condnct  suit,  56,  '^^. 

pleading  fails  to  show  party  is  an  infant,  motion  to  strike 

out  name  of.  proper,  56,  ^^. 
infant  by,  may  call  guardian  to  account  in  equity,  57,  ^^. 
suit  by  infant  as  relator,  proper,  action  on  bond' of  former 

guardian,  57.  21. 
infant  cannot  bring  suit  of  partition  by,  57,  '^,  et  seq. 
writ  of  entrv  for  lands  of  infant  brought  in  name  of  bv, 

57, «. 
infant  when  not  liable  for  malicious  suit  brought  by,  59,  ^=^. 
when  action  by  insane  joe rson  brought  in  his  name  by,  61,  ". 
infant  wife  sues  by,  or  guardian  ad  litem,  56,  '^. 
may  not  sue  for  infant  wife  against  wish  of  infant  husband, 

56,  11. 
when  wife  may  sue  for  injuries  to  by,  65,  '*. 
bill  of  wife,  husband  must  be  unless,  63,  ^^. 
wife  sues  husband  in  equity  by,  67,  '. 
Next  of  kin.    See  Kin  next  of. 
New  firm,  partners  cannot  be  sued  in  name  of,  for  debts  of  old 

firm,  89,  23. 
New  party,  when  application  to  be  made,  will  be  denied,  6,  ^^. 
how  made,  101,  ^^. 

at  common  law,  could  not  be  made  by  amendment,  102,  21. 
amendment    on    appeal    not    allowed  to   make  new  case 

against,  106.  21, 
not  bound  unless  complaint  states  cause  of  action  against, 

104,  5. 
Code  rule  for  making,  101,  ^2. 
complaint  not  amended,  to  reach,  suit  will  be  dismissed  as 

to  them,  lOi.  la. 
to  creditor's  bill,  no  objection.  lOi,  ^. 
to  creditor's  bill,  discretion  of  court.  5,  •5. 
when  creditors  will  not  be  allowed  to  be  made  in  foreclosure 

suit,  104,  1^. 
after  decree  reversed,  when  allowed,  103.  2e, 
when  defendant  may  cause  to  be  made,  104,  ^,  et  seq. 
should  be  made  when  in^'ispensable,  wanting,  104,  ^,  et  seq. 
defendants,  when  ultimate  rights  of  will  not  be  settled  in 

suit.  9,  •»«. 
equitable  defense  to  action  at  law  mav  not  be  made,  when, 

9,  2-'. 
.to  bill  in  equity,  allowed  after  demurrer  sustained,  102,  '^. 


INDEX.  461 

New  Party  —  Continued, 

person  having  no  legal  interest  cannot  force  plaintiff  to 

make  him,  |  lOi,  i",  et  seq. 
interest  transferred  pendente  lite  effect,  20,  *,  et  i^eq. 
defendant  parts  with  interest  in  suit  not  necessary  to  make, 

8,  '\ 
too  late  to  insist  on  being  made,  after  judgment  rendered, 

lOi,  1^ 
non-joinder  of,  indispensable,  effect,  103,  21,  et  seq. 
when  person  cannot  insist  on  being  made  defendant  in 

action  of  ejectment,  lOi,  i'. 
practice  iu  making,  lOi,  ^. 
practice  in  making  regulated  by  courts,  104.  2. 
sought  to  be  charged  in  suit,  service  of  process  not  suffi- 
cient to  make,  104.  *. 
no  error  to  refuse  to  allow  jyendenie  I'de  purchaser  to  be 

made,  in  foi'eclosure  suit.  104,  ^*, 
stockholders'  suit,  amendment  of  pleading,  3,  -i. 
mad-  after  cause  remanded  from  supreme  court,  102.  32. 
New  promise,  statute  of  limitations,  effect  of  on  parties  to 

note,  35,  3o. 
New  suit,  executor  of  deceased  co-defendant  in  action  on  joint 

contract  reached  only  by,  107,  ^^  et  seq. 
revival  of  suit  in  equity  after  abatement  of,  is  not  a,  105,  ^. 
scire  facias  to  revive  judgment  not  regarded  as,  105,  ^". 
revival  of  action  is  not,  71,  '^. 
Nominal  party,  who  is,  2,  1. 

when  bankrupt  may  not  be,  to  action,  53,  2. 

when  may  control  action,  2,  2. 

husband  is,  in  action  against  husband  and  wife  jointly  for 

her  separate  liabilty,"2.  ''^. 
to  judgment,  payment  of  amount  with  notice  to,  no  satis- 
faction, 2,  ^'>. 
State  is.  in  action  upon  official  bond,  39,  ^^ 
Nominal  plaintiff,  death  of.  amtndment  formal  only,  107,  2. 

what  Control  over  action,  2,  ',  et  seq. 
Non-joinler,  of  defendants,  objection  for,  how  raised,  100,  -*. 
oi  detV-ndants  in  action  upon  contract,  effect,  103,  ".  et  seq. 
of  defendants  action  ex  contractu,  objection  how,  101,  ^. 
of  defendants  to  bill  for  account  of  partnership  affairs, 

when  demurrer  overruled,  89,  ^^,  et  seq. 
of   defendants    in    action    of   tort    no    objection,   103,   ^ 

100.  ■^'. 
of  co-executors  as  parties  plaintiff,  71,  ^". 
motion  to  make  parties  must  be  made  iu  order  to  predicate 

error,  103,  ^^. 
who  may  not  object  for,  101,  ^. 
when  defendant  object  to,  101,  ''. 


462  IKDEX. 

Non-joinder  —  Continued. 

ol'  parties,  when  objection  first  made  in  supreme  court, 

?  103,  2^  102,  32,  et  seq. 
when  too  late  to  object  to,  suit  for  accounting  trustee  for 

benefits  of  creditors,  33,  ^'^. 
of  parties  to  bill,  four  modes  of  making  objection,  100,  i^. 
of  parties,  objection  for,  how  raised,  100,  ",  et  seq. 
of  plaintiffs  in  action  of  contract,  objection,  how  raised, 

100,  1^  e^  seq. 
of  plaintiff,  objection  to,  how  taken  advantage  of,  95,  i. 
of  parties  generally,  100. 
of  parties,  when  amendment  proper,  103,  i^. 
of  formal  parties  to  bill  in  equity,  effect,  103,  ^ 
of  indisi^ensable  party,  eflect,  103,  ^^. 

of  parties  to  bill  in  equity,  wnen  taken  advantage  of,  102,  22. 
of  parties,  demurrer  for  must  show  who  are  proper,  100,  i'. 
of  parties,  sufficient  excuse  for  in  equity,  103,  i^. 
of  parties,  when  amendment  allowed  after  decree  reversed, 

1U3,  26. 

of  parties,  when  none,  bill  for,  all  having  common  interest, 
100,  i«. 

of  parties  plaintiff,  in  action  for  tort,  how  taken  advantage 
of,  100,  l^  et  aeq. 

of  plaintiffs,  when  objection  waived,  100,  ^^. 

of  plaintiff  in  tort,  matter  of  abatement  only,  102,  -'K 

plea  in  abatement,  second  not  allowed  when,  100,  2«. 

of  tenants  in  common,  as  plaintiffe  in  real  action,  when 
waived,  S2,  12. 

of  tenants  in  common  in  actions  for  torts,  effect,  81.  ''. 

of  husband,  when  wife  carrjuug  on  separate  business  can- 
not plead,  68,  ^i. 

chose,  assignment  of,  common  law,  who  sue,  34.  2.  et  seq. 

chose,  rights  of  parties  in  action  upon  costs,  etc.,  34,  2. 

chose  in  action,  purchaser  from  trustee  in  insolvency  may 
sue  in  name  of  latter,  32,  ">. 

instrument,  contract  under  seal  is,  unless,  35,  2^,  et  seq. 
Non-resident,  who  is,  rule  in  Louisiana,  29,  21. 

cannot  be  compelled  to  appear  and  plead  unless,  12,  1. 

appearance  by,  is  M-aiver  of  objection  to  jurisdiction  of 
court  over  person  of,  16,  i'. 

co-administrator,  need  not  be  made  co-plaintiff,  71,  '^ 

defendants  residents  of  different  counties,  sued  in  either, 
10,  «. 

person  made  defendant  for  purpose  of  acquiring  jurisdic- 
tion over,  how  objected  to,  103,  ^. 

action  brought  by,  no  security  for  costs  dismissed  on  mo- 
tion, 8,  i«. 

infant  defendant,  how  served  with  process,  11,  i". 


rsT)Ex.  463 

Non-resident  —  Continued. 

became  iusaue  pending  suit,  practice,  §  11,  ^.    4 

judgment  against,  10.  ^. 

jurisdicrion  not  acquired  over  by  improperly  joining  with 
resident,  10.  ^. 

jursdiction  over  hv  joinder  with  resident,  judgment  against 
alone,  10,  i". 

defendant,  how  jurisdiciion  over  obtained  in  suit  to  enforce 
equitable  lien,  11,  **. 

brought  into  jurisdiction  by  force  or  fraud,   service  of 
process  upon  bad,  11,  ^. 

jurisdiction  over  pirson  not  acquired  in  personal  action  by 
publication,  13,  9. 

presumption  of  jurisdiction  of  court  over.  12.  ». 

when  p.esumption  of  jurisdiction  of  court  over,  from  rec- 
ord of,  when  ceases,  10,  1^. 

jurisdiction  over  property  of,  12,  •^. 

party  warned  by  publication,  12,  ■*. 

defendant  served  by  publication,  in  court  for  what  pur- 
pose, 13,  ^ 

State  may  subject  property  to  payment  of  claims  of  its  citi- 
zens, 12,  ^. 

misjoinder  of  defendants  in  action  upon  contract,  when 
proper,  103,  •*. 

non-joinder  of  ].laintiffs,  when  ground  of.  100,  1^. 
Non-suit,  non-joinder  of  defendants,  objection  not  properly 
raised  l)y,  100,  '^'^. 

when  plaintiff  cannot  take,  without  consent  of  defendant. 
8,  1". 
Note,  made  to  "  A..  B.,  Pres.,"  who  sue  on,  84,  «. 

from  X.  to  A.,  consideration  moves  from  B.,  A.  may  sue, 
37,  11. 

made  to  one  "as  commissioner,"  necessary  party  to  suit 
on,  24,  *". 

made  to  administrator,  upon  his  death  his  executor  may 
sue,  72,  i«. 

belonging  to  third  person,  administrator  holds  and  refuses 
to  pay,  effect,  7G. 

held  for  pavment  of  debts,  trustee  proper  party  to  enforce 
collection,  23,  '-^'^ 

assignees  of,  not  made  parties  by  admission  in  pleading 
that  suit  prosecuted  for  use  of,  1.  **. 

held  as  collateral  securitv,  may  be  sued  upon  in  name  of 
holder,  32,  ». 

forged,  when  agent  for  collection  may  recover  from  prin- 
cipal amount  paid  on,  So,  --. 

assiijned  to  fictitious  p-^rson,  suit  to  enjoin  collection  of, 
right  of  assignor,  35,  •*'. 


464  INDEX. 

Uote  —  Continued. 

transferred  for  collection,  or  as  collateral  security,  holder 

may  sue,  §  35,  i^,  et  seq.  , 

transferred  "for  collection,"  holder  niav  sue  in  own  name, 

32,  «. 
bill  to  restrain  collection  of,  necessary  parties,  28,  **. 
■when  assignee  may  intervene  in  suit  upon,  110,  i*. 
compounding  crime,  payment  to  bona  fide  holder,  money 

cannot  he  recovered  back,  35,  ^f. 
given  in  pursuance  of  contract,  rights  of  assignee,  35,  '^*. 
contract  under  seal  in  form  of,  not  negotiable,  eflect  of 

indorsement,  35,  -'*. 
given  for  purchase  of  land,  when  joint  may  sue  for  recision 

of  contract  of  sale,  96,  i-. 
made  to  agent  of  corporation,   latter  may  sue,   without 

indorsement  of,  90,  i*. 
given  to  induce  creditor  to  sign  composition  agi-eement, 

when  money  may  not  be  recovered  back,  3-4,  ^e, 
statute,  who  made  parties  defendant  in  action  upon,  97.  ^^. 
in  action  upon,  maker  and  indorser  may  be  sued  jointly, 

97,  -^,  et  seq. 
in  action  upon,  guarantor  joined  as  defendant  with  others 

liable,  97,  a. 
suit  upon,  in  Mississippi  all  persons  liable  on,  made  defend- 
ants. 97,  i«. 
what  defenses  maker  may  interpose,  84.  '".  et  seq. 
given  to  guardian  of  infant,  when  former  may  sue  in  own 

name  upon,  57,  ^. 
for  purchase  price  of  lands  of  decedent,  when  heirs  are 

necessary  parties,  22,  ^. 
when  holder  may  sue  upon,  35,  ^^.  et  .spg. 
pavable  in  specific  chattels,  holder  by  indorsement  mav 

sue,  35,  ^". 
regularly  indorsed,  holder  may  sue,  only  defense,  35,  -•. 
need  not  be  indorsed  to  enable  holder  to  sue,  35,  ^^. 
and  guaranty,   transferred  by  verbal  assignment,   holder 

may  sue  as\'eal  party  in  interest,  35,  ^,  et  !>eq. 
to  cover  purchase  price  of  land,  suit  by  holder  of  one  of 

several,  necessary  parties,  27,  '^, 
holder  may  sue  all  or  any  party  thereon  at  his  option,  35.  ^^. 
of  partners  who  liave  no  firm  name,  firm  insolvent,  rights 

of  holder,  55,  n. 
joint  and  several,  of  insolvent  partnership,  rights  of  holder 

of.  55,  i». 
given  to  partnersliip,  indorsed  by  one  partner,  holder  may 

sue  (Code),  35,  \ 
made  by  firm  to  firm  having  common  partner,  assignee  of 

latter  mav  sue  in  own  name,  35,  •*. 


INTJEX.  465 

Note—  Continued. 

joint  by  husband  and  wife,  pleading  should  show  what,  ^  09,", 

of  husband  and  wife  for  debt  of  husband  cannot  be  enforced 
against  wife,  08,  l•^  et  seq. 

of  husband  for  family  expenses,  although  taken  wife  may 
be  sued,  6S,  ^«. 

when  wife  may  sue  husband  upon,  made  before  marriage, 
67,  ^ 

transferred  by  proper  indorsement,  indorsee  may  sue,  35,  '*. 

assigned  without  indorsement,  assignor  proper  party  to 
suit  on,  2i,  ^*. 

when  maker  may  compel  interpleader,  114.  ^. 

if  plaintiff  has  possession  of  and  is  legal  owner  he  may  sue, 
35,  1-'. 

in  action  upon,  plaintiff  need  have  no  beneficial  interest 
unless,  35,  ^",  et  seq. 

equitable  o^vner  may  intervene  when,  110,  ^. 

payable  t  >  bearer,  action  upon  should  be  in  name  of  person 
holding  legal  title,  35,  ',  tt  seq. 

executed  to  two  jointly  upon  death  of  one,  survivor  may 
sue,  upon  his  death  his  executor  is  proper  plaintiff",  72,  i*. 

to  several  payees,  one  after  becomes  bankrupt,  necessary 
party  to  suit  on,  24,  '^^. 

legal  and  equitable  owner  of,  cannot  be  joined  as  plaintiffs 
in  action  upon,  102,  ^. 

action  upon,  judgment,  when  may  be  entered  against  in- 
dorser  and  action  dismissed  as  to  maker,  97,  -^,  et  seq. 

in  action  upon  judgment  may  be  entered  for  indorser  and 
against  maker.  97,  ^'^,  et  seq. 

statute  of  limitations,  effect  of  new  promise  on  parties,  35,  ^^. 

and  mortgage  transferred  by  foreign  administrator,  as- 
signee may  not  sue,  35,  ^^ 

and  mortgage,  when  plaintiff  mav  join  in  action  for  cancel- 
ation of,  9(3,  ^i. 

secured  bv  mortgage,  part  of  makers  sign  mortgage,  relief, 
99,  '.     ' 

made  by  Y.,  mortgage  by  X.,  no  personal  judgment  asked, 
Y.  not  necessary  party  to  foreclosure,  27,  --. 

executed  by  X.,  mortgage  by  Y.,  in  foreclosure  both  prop- 
erly made  parties,  2i,  -'. 

secured  by  mortgage,  assignment  of,  carries  security,  but 
transfer  of  security,  36,  -'. 

secured  by  mortgage,  indorsement  of  carries  security, 
holder  may  sue,"35,  ^". 

two  secured  bv  same  mortgage,  holder  of  either  mav  fore- 
close, ?6,  -'«.' 

non-negotiable,  made  to  agent,  when  principal  may  sue, 
84,  ",  et  seq. 


466  INDEX. 

Note —  Continued. 

action  upon  non-negotiable,  assignee  capacity,  etc.,  §  35,  K 
uunegotiable,  assignor  holds  title  to  as  trustee,  necessary 

party  to  enforce  collection,  23,  ^^. 
non-negotiable,  of  wife,  when  assignee  of  may  bring  suit  in 

name  of  husband  and  wife,  64,  ^'. 
indorsed,  generally  delivered  to  one  partner,  firm  may  sue 

on,  88, 7. 
made  by  one  partner  no  action  against  the  firm,  89,  ^^. 
made  by  two  partners  on  payment  by  estate  of  deceased, 

contribution,  72,  -^. 
rights  of  pledgee  in,  87,  ^^,  et  seq. 
purchaser  of,  from  assignee  of  insolvent,  may  sue  in  name 

of  latter  when,  55,  <*. 
given  for  rent  of  land  when  assignee  may  recover  from  pur- 
chaser of  crop,  35,  32. 
of  infant  for  land,  effect  of  disaffirmance,  on  sureties  liabil- 
ity, 59.  3. 
held  by  trustee  of  express  trust  may  be  sued  on  in  his  name 

all  (lie,  32,  *,  et  seq. 
Note  lost,  assignee  of  may  sue  in  own  name,  35,  '^^,  et  seq. 

presumption  as  to  ownership  of,  35,  '^^. 
Notice,  of  intervention,  who  must  take.  111,  ^". 
when  parties  need  not  take,  109,  •■". 
debtor  after,  of  assignment  of  unnegotiablc  chose,  liability, 

34,^. 
principal  should  have,  of  application  to  have  judgment 

assigned  after  payment,  86,  ^u. 
of  motion  to  substitute  assignee  as  party,  administrator 

must  have,  106,  3. 
stranger  must  have,  of  partner  limiting  liability,  89,  i^. 
suggestion  of  death,  opposite  party  entitled  to.  *105,  ^. 
of  revival  of  action,  defendant  entitled  to,  71,  ^^. 
Nuisance,  rule  for  making  parties  to  suit  to  restrain,  30,  ^^. 
citv  must  not  permit  sewer  to  become,  44,  i",  et  seq. 
liabilitv    for    continuance,    person    conveying    premises, 

30,  ^^ 
county  not  liable  if  jail  is  kept  so  as  to  be,  42,  ^^. 
when  landlord  must  join  tenant  as  co-plaintiff  in  action  to 

suppress,  79,  ^■*. 
fiowage  of  lands,  who  may  join  as   plaintiffs  in  suit  to 

restrain,  95,  ^^. 
public,  who  may  sue  for  injury,  30,  i",  et  seq. 
action  for,  survives  death  of  wrong-doer,  76. 
Numerous,  parties,  when  one  may  sue  for  benefit  of  all,  30,  *. 
parties,  p8rsons  having  common  right,  when  dispensed 

with,  19,  10,  et  seq. 
stockholders,  when  need  not  be  parties,  25,  i". 


INDEX.  467 

Nunc  pro  tunc,  order,  plaintiff  becomes  bankrupt  after  sub- 
mission of  cause  to  siipreme  court,  §  53,  '^^. 
partv,  death  of  after  argument  and  before  decree,  date  of, 

lOo,  --JS  108,  i». 
Objection,  what  not  valid  to  joinder  of  plaintiffs  in  equity,  96, 

1.  et  seq. 
Obligor,  joint,  in  Louisiana  may  be  sued  separately.  97,  2». 
Occupant,  of  lands,  party  to  action  of  ejectment,  2G,  ^^.  et  seq. 

of  lands,  when  need  not  be  party  to  ejectment,  2G.  ^*'. 
Office,  abolished,  action  in  name  of  probate  judge  upon  bond, 

although,  32,  ^. 
city  may  bring  bill  in  nature  of  interpleader  against  antag- 
onistic claimants  of,  43,  '. 
public  officer,  kept  out  of  by  intruder,  extent  of  recovery, 

47.  12. 
public,  quo  tcarranto  to  list  right  to,  how  brought,  39,  ^. 
Officer.     S 'e  Shekiff. 

general  rule,  have  capacity  to  sue,  47,  i. 

bill  to  prevent  city  from  paying  fire  marshal  for  services, 

necessary  party, '28,  ^2. 
of  city,  liability  of  latter  for  tortious  act  of,  44,  i^,  et  .'^eq. 
quo  warranto  against  single,  city  not  therebv  made  partv, 

44,  ^\ 
must  bring  action  for  breach  of  contract  of  purchase  at 

execution  sale,  36,  *'^,  el  seq. 
of  corp^ration,  when  latter  not  liable  for,  91,  i',  et  seq. 
of  corporation,  latter  may  sue  for  conspiracy  to  destroy  its 

business,  90,  i''. 
of  corporation  changed  after  suit  brought,  who  defends 

suit,  yl,  1". 
of  corporation,  when  court  will  not  interfere  with.  91,  ^. 
de  facto,  of  corporation,  action  by,  what  will  not  defeat, 

90,  i«. 
county,  money  paid  to,  for  services  paid  back  when,  41,  ". 
attaching,  when  joint  action  will  lie  against  creditor  and, 

to  recover  goods  taken,  98,  66,  et  seq. 
false  return,  plaintiffs  may  join  in  action  for.  0;i,  ^. 
suit  against,  for  fines  collected  State  plaintiff'.  39,  '*. 
when  not  proper  party  to  bill  for  injunction,  103.  -'. 
wrongful  taking  property  from,  after  levy  may  sue  for 

damages,  36,  *•», 
attaching  firm  propertv  for  debt  of  one  partner  firm  mav 

sue,  88,  1^ 
replevin    against,   substitution  of   defendants    in   action, 

106,  2u. 
or  agents,  State  cannot  be  brought  into  court  by  means  of 

proceedings  against  its,  40.  12. 
of  State  cannot  bind  it  by  pleading  in  suit,  40,  ^*. 


468  INDEX. 

Officer —  Continued. 

executive,  of  State,  no  proceeding  against  in  federal  courts, 

§  40,  J3. 
attaching  chattels  belonging  to  co-tenants,  liabilit}'-  of,  81, 

19     2U^ 

of  town  refuses  to  pay  over  funds  to  successor  town  may 

sue,  45,  ^ 
of  town,  change  of,  pending  suit  by,  effect,  45,  ^. 
of  town,  indictment  will  not  lie "^  against,   for  failure  to 

repair  bridge  unless,  46,  i". 
of  town,  when  mandamus  ^Yill  not  lie  to  compel,  to  rebuild 

bridge,  46,  n. 
Officer  public,  may  sue  how,  name,  47,  ^  et  seq. 

action  by,  does  not  abate  by  death  or  removal  from  office, 

107,  3t;  50,  5,  47,  «. 
bond  to  and  successors  of,  who  may  sue,  47,  ^. 
declared  bv  statute  to  be  corporation,  must  sue  in  name  of, 

47,  \ 
parish  treasurer   cannot  represent  corporation   in   court, 

50,  6. 
when  will  not    be  restrained  from  canceling  license  of 

foreign  corporation  to  do  Imsiness,  47,  ^^. 
recovery  from  intruder  in  office,  extent,  47,  ^-. 
not  liable  for  a  judicial  determination  however  erroneous, 

49,  1^ 
monev  paid  to,  for  services,  when  may  be  recovered  back, 

47,  1". 
must  pay  over  money  to  successor,  47,  ' .   et  seq. 
when  no  demand  necessary  for  monf  y  in  hanos  of,  47,  '^ 
liability  to  suit  of  private 'person,  47,'-*. 
Official  bond.     See  Bond. 

who  may  sue  upon,  36,  *,  et  seq. 

in  suit  upon,  wno  must  be  relator,  36,  ^. 

when  person  injured  may  sue  on,  36,  '". 

when  action  properly  brought  in  name  of  county.  41,  •>. 

action  upon,  by  probate  judge,  effect  of  resignation,  49,  ^. 

for  recoveiy  of  school  money,  when  brought  in  name  of 

State  on  relation  of  proper  county,  41,  •*. 
sheriff  not  liable  xi-pnn  sale  of  property  of  stranger  to  writ 

of  execution,  51,  ^'. 
given  in  name  of  State,  suit  in  its  name,  39,  ^^  ei  seq. 
clerk  State  prison,  who  may  sue  upon,  48.  ^. 
of  county  treasurer,  county  may  sue  on,  50.  ^. 
(Neb.)  suit  upon  bond  of  county  treasurer,  how  brought 

name,  50,  ^. 
when  county  treasurer  liable  to  suit  upon,  50,  ^^. 
county  treasurer  may  sue  tax  collector  upon  for  failure  to 

jDay  over  money,  50,  '^. 


I  ixDEX.  4G9 

03':et,  lai'p:cr  than   claim  of  assignee,  no  reason  for  making 

u.-~j<iKnor  party  to  suit,  §  24,  3-. 
Omission,  to  make  parties,  wnen  plaintiff  cannot  take  advan- 
tage of,  19,  13. 
Ouster,  liow  proved.  82.  ^^  et  seq. 
0v3r  advances,  madj  by  administrator  -when  distributees  are 

not  necessary  parties,  22,  ^'. 

See  La>-ds. 
Cverflow.  of  lands  when  joint  action  will  not  He  for  acts  caus- 

i:;g.  98,  15. 
Ord3r,  coM'i  mav  bv  ex  parte,  a^^point  guardian   for  insane 

defendant,' 62,' i. 
appeal  lies  from  what,  in  intervention,  111,  '■^'■^. 
of  court  granting  power  to  sue  receiver,  authority  of  court 

over,  52,  '^'^,  et  seq. 
Owners,   separate,  of  herd  of  cattle,  when  jointly  liable  for 

trespasses  of,  98,  ^. 
when  consignor  of  goods  delivered  to  common  carrier  may 

sue  for  injury  to,  although  he  is  not  the,  87.  ^  et  t<eq. 
of  goods  may  maintain  action  for  trespass  de  bo)u.-<,  :J8,  =. 
former  will  not  be  enjoined  from  prosecuting  separate 

actions  of  ejectment  against  purchasers  of  separate  par- 
cels of  same  lot,  9G,  ^'■^. 
of  lot  abutting  street,  liability  of  for  damages  to,  change 

of  grade  of  street,  4G,  ^^. 
of  lands,  rights  of  in  watercourse  upon,  38.  ^^,  ct  seq. 
of  premises  where  liquor  sold,  Avhen  liable  jointlv  with 

seller,  98,  «. 
of  a  boat,  action  against  without  naming  and  serving  with 

process,  not  liabl3  as  defendants,  1,  ^^,  et  seq. 
of  Ixgs,  when  need  not  be  j)arty  to  suit  to  enforce  laborer's 

lien  upon,  27,  ^^. 
of  equity  of  redemption  must  be  party  to  suit  to  foreclose 

mortgage,  27,  °i. 
of  promises,  only  necessary  defendant  in  suit  to  foreclose 

mechanic's  lien,  27,  i-*. 
equitable,  of  notes  secured  by  mortgage,  proper  person  to 

foreclose,  3G,  -**. 
of  lost  note,  who  presumed  to  be,  35.  -'^. 
parent  is,  of  clothes  used  and  worn  by  minor  child.  S3,  -. 
bill  to  resti-ain  improper  interference' with  plank  road,  who 

may  maintain  against,  2S,  '^^. 
of  personal  property,  when  may  not  transfer  it,  34.  ^ 
of  property,  when  liable  to  stiit  for  injury  to,  87,  i,  et  seq. 
of  propcrtv,  person  in  possession,  when  mav  sue  for  wrong- 
ful injury  to,  38,  i. 
Ownership,    of   note,    possession    is  ^j?'i»irt   facie    evidence, 

35,  1^. 

rARTIES  —  -10 


470  rs'DEx. 

Parent,  may  sue  for  services  rendered  by  minor,  ^  S3,  ^ 

entitled  to  sue  for  destruction  of  clotties  of  minor,  83,  ^. 
Parish,  cannot  be  represented  in  an  action  by  its  treasurer,  50,  ^. 
Part  owner,  of  chattel,  when  may  bring  trover  against  co- 
tenant,  81,  -ii. 
■when  all  liable  for  deceit  in  sale  of  chattel,  81,  ^s. 
of  cargo,  when  may  sue  master  and  part  owner  of  vessel 

for  his  share  of  sales  of  cargo,  81,  26. 
liable  to  co-owner  for  failure  to  procure  insurance  upon 

chattel,  81,  24. 
liable  for  materials  furnished  vessel,  81,  ^-,  ^3. 
of  chattel,  when  may  maintain  assumpsit  against  co-owner 

for  services,  81,  'K 
Partition,  who  may  intervene  in  suit  for,  110,  ^'. 
Party.    See   I^-DISPE^-sABLE    Parties;    Kecessaky    Parties; 

New  Parties  ;  Proper  Parties  ;  Position  of. 
who  is  a,  1,  1,  et  seq. 

meaning  of  the  term  as  used  in  the  statute,  1,  3. 
appearing  as  agent,  guardian,  etc.,  extent  of  liability  as.  1,  i«. 
to  bill  for  an  account  of  partnership  affairs,  who  sliguld  be 

made,  89,  ^^,  et  seq. 
to  suit  for  final  account  of  trustee  for  benefit  of  creditors, 

33,  i*. 
when  sureties  of  administrator  proper,  to  suit  to  set  aside 

settlement,  86,  '^L 
assignee  not  made  by  admission  in  pleading  that  suit  is 

prosecuted  for  use  of,  1,  ^-t. 
person  executing  bond  required  of  claimant  of  attached 

property,  is  not  a,  1,  ^'. 
when  United  States  becomes,  bound  by  same  rules  as 

others,  8,  ». 
bound  by  legal  proceedings,  7,  ^. 

as  bound  by  legal  proceedings,  who  included  in  term,  7,  ^. 
are  bound  by  the  decision  in  consolidated  actions,  7,  ^, 
when  not  a  party  to  a  proceeding  by  the  attorncj'-general 

to  inquire  into  pul^lic  charity,  1,  ^i. 
capacity  to  sue  should  appear,  4,  3,  etseq. 
might  sue  in  own  or  another's  right,  must  show  capacity  in 

which  action  is  brought,  4,  •*,  et  seq. 
adverse  claimant  of  title  to  mortgaged  premises,  should 

not  be  to  suit  to  foreclose  lien,  5,  **. 
when  persons  having  common  right  may  be  dispensed  with 

as  parties  to  suit  in  equity,  19,  '",  et  seq. 
sufficient  number  of  persons  having  common  right  to  rep- 
resent all  must  be,  19,  i^, 
assignor  of  a  contract,   when  need  not  be  joined  in  suit 

thereon,  20,  '^. 
to  bill  for  contribution,  all  solvent  sureties  should  be,  86,  \ 


tN-DEX.  471 

Party  —  Continued. 

corporatiou  cannot  be,  when  it  lias  ceased  to  exist.  {{  2j,  ". 

■wliL-u  corporation  sliould  be,  to  suit  against  its  oftict-ro  and 
stockholders,  90,  20. 

stockholder  allowed  to  be  substituted  for  corporation  in 
pending  suit,  106,  ^5. 

when  stockholders  arc  not,  cannot  defend  action  against 
corporation,  91,  =. 

to  bill  to  restrain  officers  of  corporation  from  misappropri- 
atmg  trust  funds,  latter  must  be,  91,  '^. 

how  brought  into  court,  11,  '^. 

when  intervener  becomes,  109,  *. 

change  of  character  of,  intorveation.  111,  *. 

standing  of  intervenor,  111,  '^. 

when  may  not  except  to  intervention,  109,  "'. 

defendant  should  be  to  proceedings  in  error  bv  intervenor, 
111,  28. 

aj^peal  dismissed  only  upon  consent  of  all,  111,  -^. 

of  record,  jurisdiction  of  federal  court  depends  xipon  citi- 
zenship of  in  action  not  arising  from  contract,  8,  *. 

proof  of  citizenship  in  federal  courts,  10,  '. 

who  should  be  to  creditor's  bill  to  enforce  payment  of  cor- 
poration debts,  93,  ^^,  el  seq. 

to  creditor's  suit,  presumption  as  to,  1,  '^. 

creditor  entitled  to  be  made,  to  creditor's  bill,  5,  *. 

judgment  creditors  to  creditor's  bill,  made  without  order 
of  court,  102,  31. 

creditor    of   common    debtor,  when    cannot    be,   to  suit 
against,  5.  ^. 

death  of,  effect  upon  pending  action,  105,  2,  et  seq. 

death  of  sole  plaintiff  or  defendant  docs  not  necessarily 
(statute)  abate  action,  107,  ^u,  103,  «. 

death  of  after  argument  of  cause,  and  before  decree,  date 
of,  105,  21. 

dying  after  judgment,  in  whose  name  appeal  taken,  10?,  '. 

to  action   fur  divorce  dies  ponding  appeal  causes  abate- 
ment, 108,  11. 

death  of,  on  appeal  after  submission  of  cause,  and  before 
decision,  108,  i^. 

death  of,  when  suggested,  106,  ', 

death  of,  personal  representative  of  not  bound  until  brought 
into  court,  lOG,  i". 

who  iiot  made  for  x^urpose  of  opening  decree  of  foreclosure, 
5,  11. 

who  mide  defendants  in  equity,  99,  \  et  seq. 

defendant  may  be  made  in  several  capacities,  4.  ",  ct  s'eq. 

defendant,  when  real  p.u-fv  in  interest  permitted  to  be 
made,  106,  -'-. 


472  INDEX. 

Party —  Continued. 

made    defendant  for  purpose  of   acquiring  jurisdiction, 

oLjection,  how  met,  |  1U3,  ^. 
Code  rule  for  making  new  defendants,  lOi,  '^'^. 
new,  when  defendant  may  cause  to  ho  made,  lOi,  ^,  et  seq. 
when  defendant  cannot  object  that  third  person  is  not 

made,  101,  ''. 
defendant,  what  proceedings  insiifficient  to  make  person, 

1,  ^,  et  seq. 
assignee  of  defendant  pending  suit,  made  by  supplemental 

bill,  11,  \ 
defendant,  Mississippi,  all  persons  liable  upon  note  should 

be,  in  action  upon,  97,  ^^. 
defendant  in  action  of  tort,  defect  of,  no  objection,  103,  ^. 
in  action   for  devastavit  of  former  admniistrator,  surety 

and  representative  of  succeeding  administrator  cannot 

be,  75. 
all  distributees  must  be  joined  in  suit  by  one  to  set  aside 

settlement  of  administrator.  78,  i". 
%yho  should  be  made  to  a  suit  in  equity,  18,  ^. 
equity  will  not  lend  its  aid  to  alter  trial  at  law  unless,  9,  ^^. 
to  record,  nuist  usualh^  prosecute  petition  in  error,  108,  •*. 
judgment  against  several,  all  must  unite  to  prosecute  writ 

of  error,  108,  ^^,  et  seq. 
guardian  od  litem  for  infant  defendant  is  not  a,  58.  '■^^. 
infant  cannot  be  made  for  sake  of  discovery  only,  59,  ^^. 
infant  must  be  to  all  suits  relating  to  his  property,  21,  ^. 
indispensable,  who  is,  18,  *. 
to  injunction  suit,  when  sureties  on  injunction  bond  are, 

86,  21. 
injuction  will  not  be  granted  against  a  person  not  a,  28,  25. 
before  final  injunction  granted,  all  interested  persons  must 

be,  9,  a«. 
when  insane  person  not  necessary  to  suit  i?i  j^er.^oiiain  in 

equity,  21,  v  et  seq. 
becomes  insolvent  pending  suit,  effect,  24.  ". 
X)Drson  having  no   legal  interest  cannot  insist  on  being 

made  a,  104,  ^",  et  seq. 
in  interest,  all  joined  in  suit  in  equity  by  assignee  of  part  of 

demand,  34,  ^^. 
person  interested  may  become  to  partition  suit.  5,  ^ 
transfer  of  interest,  pendente  lite,  effect  as  to  making,  20,  *, 

et  seq.,  1,  '^\ 
real,  in  interest,  when  allowed  to  be  made  a  partv  to  defend 

suit.  106,  22. 
real,  in  interest.     See  Real  PAiiTV  in  Interest. 
when  jurisdiction  depends  upon.,  it  is  tiie  party  named  in 

the  record,  10,  '^. 


INDEX.  473 

Party —  Continued. 

who  should  be  made,  to  an  action  at  law,  ^  18,  ^ 
who  may  be  made,  to  suit  to  enforce  lien  iiprm  land,  27,  '. 
when  elder  lienholder  may  be  made,  to  suit  ot  junior,  5,  =>. 
generally  husband  may  be  made,  to  suit  rclatmi^  to  prop- 
erty oi"  wife.  21,  -^ 
husband  made,  uponsuggestionof  marriage  of  female,  C3,  '". 
when  wife  does  not  become,  by  joining  husband  in  motion, 

1,  ^». 
husband  joins  wife  in  appeal  thereby  becomes  a.  1.  '^. 
to  proceeding  by  mandamus,  county  against  its  officers, 

who  may  not  be,  5,  '. 
misjoinder  and  non -joinder  of,  generally,  100. 
misjoinder  of,  who  may  object,  101,  ^,  et  req. 
plaintift,  misjoinder  cannot  be  reached  by  demurrer  to 

answer,  100,  ^ 
misjoinder  plaintifl',  proper  motion  to  strike  out  name,  102, 

1*,  et  seq. 
misjoinder  plaintiffs,  action  for  tort  after  cause  remanded 

from  supreme  court,  amendment  proper.  102.  '. 
to  motion  to  correct  a  jtidgment,  who  are,  7,  '-. 
must  be  described  by  name  and  not  by  desci'lptio  personce, 

4,  ^ 
motion  to  strike  out  name  of,  when  proper,  102,  '^  et  seq. 
legally  interested,  action  upon  contract  brought  in  name 

of,  81,  ^,  et  seq. 
must  vindicate  his  rights  in  his  own  name,  3.  ^  et  seq. 
person  not  named  as,  does  not  become  bv  reason  of  answer 

filed  for,  1,  '*. 
person  named  in  body  of  petition  and  treated  as,  is  a,  1,  '^. 
necessary,  who  is,  18^  ^. 
who  is  not  a  necessary,  to  suit,  £0.  '^,  (t  seq. 
next  friend  of  infant  is  not  a,  oG,  ^^,  e' siu^. 
new,  prac  ice  in  making,  101.  '. 
new,  practice  in  making  regulated  by  courts,  104.  2. 
new,  made  to  creditor's  bill  without  oidir  of  court,  104,  =*. 
new,  service  of  process  upon  not  sufficitnt  to  make,  104,  *. 
new,  stockholders'  suit,  amendment  of  pleading-,  3.  '^^. 
new,  to  bill  in  equity  p'.opcrly  allowed  to  bo  made  after 

demurrer  sustained',  102,  '^. 
when  new,  allowed  to  be  made  after  decree  reversed.  103,  '^. 
to  bill  in  equity,  want  of,  when  taken  advantage  of.  102,  --'. 
want  of,  raised  at  final  liearing,  effect,  1C2,  '^^,  et  srq. 
non-joinder  of,  objection  first  made  in  supreme  court,  102, 

3-'.  et  sf^q.,  103,  -*. 
non-joinder  of,  liow  objection  raised,  100,  ".  ef  seq. 
to  bill,  non-joinder  of,  nioeles  of  taking  objection,  100,  '^. 
non-joineler  of,  who  may  not  object,  101,  ^. 


474  INDEX. 

Party  —  Cnnlinned. 

Don-joinder  of,  indispensable,  effect,  ?  103,  21,  (-t  s-eq. 

formal,  misjoinder  or  non-joinder  of,  in  equiiy,  efltect.  103,  \ 

demurrer  lor,  non-joinder  must  show  who  are  proper, 
100,  1^ 

sufticient  excuse  for  non-joinder  of,  in  equity,  103,  ^^. 

want  of,  court  niaj'  notice  and  of  own  motion  order  amend- 
ment of  bill,  102,  28^  et  seq. 

non-joinder  of,  wiien  amendment  proper,  103,  ^'^. 

to  suit  to  restrain  nuisance,  30,  i^. 

numerous,  when  one  may  sue  for  benefit  of  all.  30,  *,  et  seq. 

stockholders  numerons,  when  need  not  be,  25,  ^^. 

numerous,  in]  unction  to  restrain  colleciion  of  tax  to  pay 
bonds,  28,  ^', 

omission  of,  no  error  predicated  upon,  unless  motion  to 
make,  103,  ^^ 

who  should  be,  to  suit  for  partition,  82,  '^'^,  et  seq. 

to  action  of  partition,  are  all  actors,  82,  ^■*. 

plaintiff,  who  is  in  an  action,  1,  *. 

who  m.ade  plaintiff  in  suit  in  equity,  96,  ^  et  seq. 

-ame  person  cannot  be  both  plaintiff  and  defendant  in 
action  at  law,  6,  ^",  et  seq. 

equity  suit,  same  person  may  be  both  plaintiff  and  defend- 
ant, 6,  ^'^,  et  seq. 

solo  plaintiff  assigns  his  interest,  suit  ceases,  equity,  107,  ^8. 

proiDer,  who  is  to  suit,  18,  ^". 

qucihi,  when  principal  of  a  bond  binds  himself  to  obey  the 
order  of  the  court,  his  sureties  thei-eby  become,  1,  ^^. 

quasi,  when  relator  becomes,  1,  ^^. 

to  suit  to  quiet  title  to  lands,  stranger  may  not  become, 
5,  ^*. 

who  real,  who  nominal,  2,  ^ 

appointment  of  receiver  pending  suit  must  be  made,  52,  ^5. 

after  decree  either  ma^^  revive  action,  105,  ^. 

must  vindicate  own  rights,  cannot  complain  for  others,  8, 1. 

exception  to  rule  that  rights  of  person  will  not  be  deter- 
mined in  suit  to  which  he  is  not  joined,  28.  ^'■^. 

being  made  by  supplemental  jDleadings  will  not  deprive 
persons  of  rights  acquired,  8,  ^". 

rules  as  to  making,  when  chancery  adhered  to,  9,  ^*. 

exception  to  general  rule  for  making  to  suit,  19,  ^  et  seq. 

exception  to  rule  for  making  in  courts  of  United  States, 
19,  ». 

when  road  district  may  not  be,  20,  ''. 

status  of  sheriff  as  to  suit  to  restrain  the  execution  of  pro- 
cess, 51,  21. 

stipulation,  effect  as  to  time  when  person  made,  7.  '''^. 

stranger  may  make  motion  in  action  that  he  be  made  a,  8,  '■^. 


INDEX.  475 

Va-rtj  ~  Contimied. 

substitution  of,  notice,  ?  106,  •*,  et  seq. 

sole,  amendment  not  allowed  to  extent  of  substitution  of 

new  party  for,  106,  ^'^. 
substitution  of,  same  rule  in  supremo  as  in  circuit  court, 

108.  8, 
extent  of  power  of  substitution  to  pending  action,  100,  ". 
substitution  of  administrator  by  exj^cirte  motion  on  deat!i 

of  plaintiff,  106,  ^. 
administrator  of  defendant  cannot  apply  to  be  substituted 

as,  remedy.  103,  ^i. 
substitution  of  assignee  as,  administrator  must  have  notice, 

106,  ». 
suit  a2:ainst  trustees  for  fraudulent  breach  of  trust,  excci> 

tion  to  rule  as  to,  3  j,  ". 
United  States,  when  recognized  as  plaintift",  1,  ^^. 
when  widow  and  next  of  kin  are,  to  probate  proceeding, 

who  should  be  to  suit  to  obtain  constniction  of  will,  22,  '. 
Partition,  who  may  maintain  bill  for.  82.  s',  ct  seq. 

suit  for,  fomaio  defendant  marries  pending,  husband  not 

made  party,  effect,  7,  ^K 
inf.iut  brin.^s  suit  for,  by  guardian,  57,  ^s  et  seq. 
on  behalf  of  infants,  wlien  will  be  denied,  57,  ^^. 
Fuit  of,  by  heir,  all  co-heirs  must  be  joined,  28.  '^-. 
■when  husband  and  wife  may  unite  in  bill  for,  06,  '^^. 
of  lands,  Indian  may  Fue  for,  29,  '^K 
who  made  parties  to  suit  for,  82,  3^,  et  seq. 
suit  for,  insane  person  must  be  party,  28,  ^'. 
person  interested  may  bo  made  p;u-ty  at  any  stage,  5,  '. 
necessary  parties  to  suit,  28,  i-,  et  srq. 
suit,   administrator  of  deceased  co-tenant  not   nccessai-v 

party,  28,  -K 
suit  for,  when  vendor  of  complainant  not  necessary  partv, 

26,  16. 
suit,  wife  claiming  dower  interest  should  be  party,  28,  '*'. 
parties  to  suit,  immaterial  Avhat  position  of  upon  record, 

28,  13. 
to  maintlin  suit  plaintiff  must  have  possession,  82,  ^. 
statutory  action  of.  plaintiff  need  have  neither  possession 

nor  right  of,  9,  -». 
suit,  occupants  of  land  and  encumbrancers  not  necessary 

parties  to,  28,  -3,  (-t  siq. 
right  of.  extent,  82,  ^K  et  seq, 
when  sale  of  the  iiremises  will  bo  ordered  bv  the  court, 

82,  36. 
statutory  action,   can   same  person  be  both  plaintiff  and 

defendant  in,  G,  i-,  et  seq. 


476  IXDEX.  ""~" 

Partition  —  Continued. 

action  for,  revived  in  name  of  widow  and  heirs  fstatute  Va.) 

g  107,  •'". 
equitable  suit  for,  title  disputed,  must  be  established  at  law, 

Partner,  suit  by,  for  accounting  of  firm  assets,  25,  ^,  d  scq. 

member  of  two  firms,  may  sue  in  equity  for  accoiuit,  b:8,  '^. 

cannot  maintain  assumpsit  against  co-partner  until  account 
settled,  88.  »*. 

when  may  sue  co-partner  upon  express  promise,  88,  '^^. 

and  assignee  of  bankrupt,  may  be  joined  in  action  on  bond, 
54.  5,  " 

bankrupt,  when  assit^nee  of,  necessary  party  to  suit  to  re- 
cover firm  assets,  25,  ^. 

bankrupt,  application  for  discharge,  acts  of  co-partner, 
54.  ^. 

bond  given  to,  firm  undisclosed,  may  sue  alone,  88.  ^-, 

when  contract  of  co-partners  made  by  statute  joint  and 
several,  any  one  sued,  89.  *',  et  srq. 

not  necessary  to  prove  i)arties  to  contract  are,  to  sue  jointly, 
94,  1,  et  seq. 

who  should  l)e  defendants,  in  action  against  firm,  S9,  i. 

when  entitled  to  be  made  defendant  in  action  against 
co-partner,  89,  ^. 

suit  by  for  injury  to  firm  property,  co-partner  made  defend- 
ant, amount  of  recovery,  88,  ^". 

bill  of  discovery  filed  cither  for  or  against,  2.  ^^,  et  i^eq. 

all  sliould  unite  in  action  on  partnership  claim  after  disso- 
lution, 88,  '^'^,  et  seq. 

suit  against  co-partner  for  dissolution,  substitution  of  as- 
signee of  bankrupt  plaintiff' proper,  54,  <>. 

for  tortious  acts  of  on(>,  when  firm  liable,  89,  ^-.  et  seq. 

injunction  against  co-partner,  when  proper.  9.  ^'. 

when  may  restrain  co-partner  from  collecting  partnership 
cffects,'88,  21,  et  seq. 

all  of  firm  must  be  parties  to  suit  to  restrain  publication 
of  copy  of  alias  sold  by  one  member.  28,  ^. 

insolvent,  selling  all  interest  in  firm  property  to  pay  own 
debt,  co-partner  may  sue.  88,  '^'^. 

in  suit  liy.  when  agent  of  firm  anel  insolyent  co-partner 
made  defendants,  55,  ^'^. 

cannot  confess  judgment  tobind  firm  pi-nperty  except,  89,  ^^. 

to  limit  liability  notice  must  be  given,  89,  ^^.' 

managing,  cannr^t  sue  for  all,  88,  ^. 

generally,  all  unite  in  suit  to  foreclose  mortgage  taken  to 
secure  firm  debt.  27,  ^'-.  et  seq. 

when  suit  against  partnership  may  be  against  it,  either  in 
firm  name  or  in  names  of,  89,  ","ei  ,seq. 


rs-DEy  477 

?a.Ttner  —  Contiynied. 

in  new  fii-m,  cannot  be  sued  in  name  for  debts  of  old  firm, 

?  89,  -'K 
Avhen  note  made  in  name  of,  no  action  against  firm,  89,  ^^. 
when  need  not  be  party  to  partnership  suit,  25,  *,  et  scfj. 
all  are  necessary  parties  to  suit  n  lating  to  partnership,  '25,  ^ 
.    when  proper  parties  to  money  rule  aj^ainst  sherift",  25.  ^i. 
dormant,  need  not  be  made  plaintili"  in  partnership  suit, 

88,*. 
cannot  sue  co-partner  for    fraudulent   removal    of   fiim 

property,  88,  i». 
•when  niav  maintain  replevin  against  co-partner  for  chattel, 

88,  -'".  ' 
generally,  suits  by,  88.  .-.-,^i««- 

who  may  sue  for  firm,  88,  &,  c. 
suits  against  generally,  89. 
surviving  (La.)  joinder  of  representative  of  deceased,  in 

action  for  recovery  of  money,  25,  ^. 
defendant,  death  of  one,  suit  proceeds  against  survivor, 

107,  «, 
when  survivor  mu^st  account  to  the  administrator  of  the 

deceased  partner,  72,  -^ 
surviving,  when  cannot  recover  firm  property  from  exe- 
cutor of  decedent,  7i. 
surviving,  ne^er  joined  as  defendant  with  repi'esentative  of 

decedent,  in  action  on  partnership  debt,  74. 
on  death  of  one  the  survivor  may  settle  the  affairs  of  the 

firm,  72,  2", 
survivor,  not  liable  for  balance  due  estate  of  decedent  until 

aft-urs  are  settled,  is  liable  to  account,  72.  ■-^,  -i. 
attachment  of  firm  property  for  debt  of  one,  who  sue  for 

trespass,  88,  ^'^. 
verdict  against,  when  sued  jointly,  89,  3,  et  seq. 
Partnership,  liability  for  tort,  joint  or  several,  98,  *, 

accounting,  suit  by  partner  for,  necessaiy  parties,  25,  ^, 

el  seq.,  24,  **. 
accounting,  when  heir  of  deceased  partner  not  necessaiy 

party  to,  25,  ^^. 
action' lies  by,  against  one  who  fraudulently  induces  it,  to 

give  credit  to  stranger,  88,  ^. 
debts,  suit  on  bond  given  to  r<  tiring  partner  for  protection 

against,  proper  parties,  25,  '^. 
debt,  mortgage  t  iktn  to  secure,  all  partners  unite  to  fore- 
close, 87,^  ^■-,  et  seq. 
debt,  nece.-^sary  parties  to  suit  to  subject  property  of  one 

p:irtn  r  to  payment  of.  25.  '-. 
suit  for  disso  iition  of.  necessary  parties,  25.  ^*. 
after  dissolution  of,  who  may  sue  for,  SS,  -^,  ( t  seq. 


478  INDEX. 

Partnership—  Continued. 

dissolution  by  death  of  partner,  survivor  should  sue  upon 
claims  of,  |  88,  ^^,  et  seq. 

bill  in  equity,  partners  should  be  parties,  assignee  of  bank- 
rupt should  be  joined,  54,  *. 

insolvent,  rights  of  holder  of  joint  and  several  note  against, 
55,  1". 

insolvent,  no  name,  two  partners,  note  made  in  individual 
names  of,  right  of  holder,  55,  ^^. 

note  indorsed  generally  to,  may  be  sued  upon  by,  88,  ''. 

note  given  to,  indorstd  by  one  partner,  holder  may  sue 
(Code)  in  own  name,  35,  *. 

note,  made  by  one  tirm  to  another,  common  partner, 
assignee  may  sue  on  in  own  name,  35,  ^. 

partner,  member  of  two,  may  sue  in  equity  for  account, 

88,  15,  et  seq. 

who  parties  to  suit  by,  88,  *. 

property,  attachment  of  all,  for  debt  of  one  partner,  firm 
may  sue,  88,  ^'■^. 

propeVtv,  partner  cannot  sue  co-partner  for  fraudulent  re- 
moval of,  88,  19. 

property,  injury  to,  in  action  by  one  partner  for,  where  co- 
partner made  defendant,  amount  of  recovery,  88,  i". 

property,  partner  cannot  confess  judgment  to  bind,  except, 

89,  1*. 

property,  receiver  of,  when  must  sue  in  name  of  firm, 

88, 11. 
suit  by,  in  whose  name  brought,  88,  i,  et  seq. 
when  may  be  sued  in  firm  name,  89,  ^,  et  stq. 
suits  relating  to,  necessary  parties,  '25,  i,  et  i^eq. 
settlement  of  affairs  of  partners  after  dissolution,  when 

receiver  appointed,  53,  i^. 
appeal  in  name  of,  what  substitution  permissible,  106,  ^e. 
when  liable  for  tortious  acts  of  one  partner,  89,  i-,  eiseq. 
undisclosed,  when  one  partner  mav  sue  on  attachment 

bond,  88,  12. 
undisclosed,  contract  made  by  one  partner  for,  firm  may 

sue,  88,  8. 
when  verdict  in  favor  of  defendant  contrary  to  law,  89,  i^. 
Passengers,  misleading  announcements,  when  railroad  com- 
pany liable  for,  91,  ^8. 
Patent,  infringement,  when  assignee  may  sue  for,  38.  i^. 

to  lands,  suit  to  set  aside,  attorney-general  must  institute 

suit,  48,  &. 
to  lands  to  testator  after  death  of,  necessary  parties  to  suit 

by  devisee  to  I'ecover,  22.  ^i. 
Patients,  smuU-pox,  town  not  liable  to  physician  for  treatment 

of,  4G,  «.  ^ 


ES-DEX.  479 

Panper,  action  brought  to  recover  expenses  of  settlement  in 
town,  liow  brought.  §  45,  *,  et  seq. 
prisoner,  county  not  liable  for  delLiise  of,  42,  ^'. 
Payee,  of  lost  note  presumed  to  l)e  owner,  :;5.  -=. 

of  not-'  given  to  compound  crime  need  not  refund  money 

paid  to  bona  fide  holder.  35,  '^^. 
joint,  on  death  of  one,  joint  note  descends  to  survivor,  on 
his  death  to  his  executor,  72.  ^^. 
Payment,  of  debts.    See  Debts,  Tayment  of. 

of  forged  check,  liability  of  bnnlc,  91,  i',  ct  s^eq. 
ilkg  il,  bill  to  restrain,  of  city  funds,  necessary  parties.  28, '". 
wluu  common  carrier  liable  for  delivery  of  goods  without, 
87.  K 
Penalty,  when  executor  not  liable  for  failure  to  discharge 
mortgage  of  record.  75. 
statutory,  when  tenant  in  common  may  not  bring  for  treble 

damages  against  co-tenant,  82.  ^'. 
for  failing  to  file  a  report  required  by  trustee  of  corpora- 
tion, survivor,  107,  ^**. 
action  by  people  of  State  of  Illinois  for  use  of,  etc.,  when 

will  not  be  dismissed,  39,  ^. 
marriage  of  persons  under  ago  justice  of  j^cace  cannot 

recover  amount  back,  49,  ". 
statutory,   for  violation    of    duty,  when   eitlier   State   or 
'    private  person  may  sue  for,  38,  '^. 
Pending  action,  effect  ot  dissolution  of  corporation  upon,  91,  ^•^. 
Pendents  lite,  defendant  becomes  insane,  guardian  made  partv, 
G2,  ^. 
interest  of  party  transferred  action  continued  in  name  of, 

transfer  of  interest,  effect  of,  new  parties,  20,  *,  et  seq. 

plaintiff  becomes  bankrupt,  effect,  5  5.  ^^,  et  seq. 

effect  of  death  of  plaintiff  upon.  71,  ^^. 

plaintiff  declared  insolvent  debtor,  su'.t  may  still  proceed  in 
his  name,  55,  3. 

transfer  of  interest  of  plaintiff,  in  whose  name  continued, 
34,  8,  et  seq. 

plaintiff  transfers  interest  to  trustee,  latter  joined  as  party. 
23,  6. 

infant  plaintiff'  attains  majoritv  substituted  as  sole  plaint- 
iff, 57,  *. 

purchaser,  when  may  defend  action  to  recover  land.  5,  '-'. 

purchasers  need  not  bo  parties  to  foreclosure  suit,  7,  -'^.  27, 
^^  104,  11,  et  seq. 

appointment  of  receiver  for  party,  suit  continued  for  bene- 
fit of,  52,  ''. 

death  of  receiver  successor  continues  suit,  52,  i". 

change  of  oflicers  of  town,  effect,  45,  ^. 


i80  rs'DEX. 

Pending  suit,  "who  may  intervene  in,  ^  110.  ^^. 

]<}■  trustee  death,  removal  of,  practice,  82,  ^-,  rt  Feq. 
Peorle  of  a  county,  are  not  a  corporation,  cannot  sue  or  be 

sued,  41,  ^. 
Person,  for  whose  benefit  a  contract  is  made,  could,  before 
Code,  sue  in  equity,  37,  '^.  el  s(q. 

common  right  di>pensed  with  as  parties,  equity.  19,  ^o. 

in  collusion  with  administrator,  when  may  bc'joined  with 
as  defendants,  22,  ^*. 

having  no  interest  cannot  maintain  action,  30,  *. 

May  and  Mary  names  of  different,  3,  '•^. 

having  interest  in  subject-matter  of  suit  in  equity  should 
be  parties,  18,  ^,  et  seg. 

having  interest  in  object  of  bill  in  equity  should  be  parties, 
18,  ^,  ct  seg. 

without  interest  should  not  be  made  party,  20,  ^. 

must  have  what  interest  in  order  to  constitute  him  a  neces- 
sary party,  18,  ^^ 

when  not  a'necessary  party  to  a  suit,  20,  i,  et  seg. 

same  iu  action  at  law  cannot  be  both  plaintiff  and  defend- 
ant, G,  ^".  (t  sen. 

in  possession  of  rji'operty,  general  rule  mav  sue  for  injurv 
to,  38.  1. 
Personal  actions,  at  common  law  ai-e  transitory,  9,  '^. 
Personal  property,  when  may  not  be  transferred  by  owner, 

Personal   representative.     See  AD:>nMSTEATOK ;    ExEcrxoK ; 

Admixisteatok  a^d  Executor. 
of  assignor,  when  n',  cessary  party  to  suit,  24,  ^",  et  .'feq. 
capacity  in  which  i::5  liable'for  claims,  75. 
in  action  upon  joint  contract  cannot  be  joined  with  tlie 

siTrvivor,  may  be  sued  alone,  74. 
in  equity  all  liable  upon  a  joint  contract  mav  be  sued, 

74. 
in  an  action  npon  a  joint  and  several  contract,  never  joined 

as  defendants  with  survivor,  74. 
only  necessary  defendant,  in  action  against  estate,  75. 
of  co-administrator,  when  may  be  sued  for  distributive 

share,  77. 
proper  person  to  recover  assets  of  the  estate,  22,  »,  et  seq. 
when  may  enjoin  creditor  from  making  sale  of  goods  of 

estate,  72,  i'. 
in  case  of  insolvency,  etc.,  of,  heir  may  sue  for  debt  due 

estate  of  decedent,' 78,  i,  d  seg. 
must  be  before  legacy  can  be  recovered,  77. 
when  necessary  party  to  bill  to  recover  legacy,  22,  •'i,  et  seg. 
when  action  ior  negligence  or  deceit  of  de'cedent  will  lie 

against.  76. 


rSTDEX.  481 

Personal  Representative—  Co/2/i>iu«/. 

of  deotastd  iiii>rrLraj,'ur,  when  necessary  party  to  foreclcs- 
Tire  suit,  ^  27,  '•^^,  et  seq, 

of  next  of  kill,  when  necessary  partifs  to  bill  for  final  set- 
tlement of  estate  of  decedent,  22.  ^■'',  it  srq. 

note  made  to  administrator,  in  evcr.t  of  his  death  who  may 
sue,  72,  ^6. 

of  joint  pavee  of  a  note  cannot  join  as  plaintift' witli  tlie  sur- 
vivor, 72,  i«. 

of  survivor  may  sue  on  note  to  joint  pyeesi,  72,  i^,  ''■'. 

of  pirty  not  bound  by  proceedings  in"  i)ending  suit  r.ntil 
brought  into  court,  100,  i". 

of  phiintiff.  failure  to  prosecute  suit,  docs  not  of  itself  dis- 
solve injunction,  8.  ^'^. 

of  debtor,  when  not  necessary  party  t^  suit  to  rcacli  prop- 
erty fraudulently  conveyed  by,  24,  --. 

when  necessary  party  to  bill  to  redeem,  2S.  '.  <(  ^eq. 

stranger    subsntuted   in    place  of   bv  consent,   evidence 
admissible,  106,  ^'. 

of  co-surety,  may  be  sued  for  contribution.  75. 

of  surety,  distribution  suit  for,  against  administrator,  pro- 
per party,  22,  ^•*. 

when  right  of  action  for  tort  survives  against,  7u. 
Petition,  in  error,  who  may  prosecute,  103.  *. 

IK  w  parties  make  by  as'  matter  of  indulgence.  104.  ^^. 
Physician,  county  liable  to  forjiost  mortem  examination,  when, 
42,   "'. 

when  guardian  of  wai'd  liable  to  for  services  rendered  slave 
of  latter,  59,  '. 

services  rendered  family,  husbanl  liable  for,  G3.  -',  <t  ■•'fq. 

resident,  county  hospital,  county  not  liable  for  unskillful 
treatment  of  patient,  42.  *-, 

may  not  recover  frcmi   town  for  treatment  of  small-7X)X 
patients  in  absence  of  contract,  40,  '^. 
Plaintiff,  who  is  in  an  action.  1,  *. 

action  commenced  by   agent,    substitution  of   principal, 
proper,  106,  '■*, 

alien  enemy,  when  action  brought,  effect  common  law.  29,  ''^. 

becomes  alien  enemy  pending  suit,  eftlct,  29,  **',  (t  i^eq. 

assignee  of  purchaser  at  slieriti"s  sale  not  entitled  to  bo 
substituted  as,  lOG,  '', 

in  action  for  assault  and  battery,  death  of  after  ap-ual. 
abatement,  108,  ^'•. 

capacity  in  which  he  sues  must  distinctly  appear.  1.  \ 

how  described,  4,  •>,  et  ^fq. 

sutMcient  description  of.  capacity  1 1  sue.  4,  -. 

additions  to  name  of.  what  are  surplusage,  i.  '=,  it  seq. 

joint  owner  of  chattel,  sue  for  injury  to,  95,  '. 

P.\UTIES  — 41 


482  INDEX. 

Plaintiff—  Continued. 

uniting  sfveral  caiises  of  action  in  one  complaint,  g  103,  ^. 
■\\]un  may  not  recover  npon  wrong  arising  from  breach  of 

contract,  91,  '^^. 
may  sue  in  equity  upon  contract  to  which  he  is  both  prom- 

issor  and  promisee,  31,  '^. 
when  corporation  as,  had  no  instance,  amendment  allowed 

90,  1.^. 

private  person,  when  cannot  recover  against  corporation, 

91,  1^. 

death  of  liefore  commencement  of  the  action,  how  taken 

advantage  of,  107,  K 
death  of,  pending  suit,  71,  '**. 

death  of,  no  reason  for  arresting  suit  against  surety,  8G,  '^^. 
death  of,  proper  time  for  proof  of,  108,  *». 
death  of,  in  action  for  seduction,  effect,  83,  ^2. 
death  of,  pending  appeal,  injurv  to  person,  no  abatement, 

lOS,  1. 
death  of,  p  rsonal  representative  fails  to  prosecute  suit, 

effect  on  injunction,  8,  i-. 
death  of,  after  judgment,  administrator  to  sue  out  writ  of 

error,  71,  '^^. 
death  of,  in  action,  who  may  revive,  105,  ^2. 
death  of,  when  co-defendant  allowed  to  revive  suit  in  own 

name  as  administrator  of,  71.  '^^. 
dies  pending  suit  for  specific  performance,   who  should 

revive,  7s,  ^6_ 
death  of,  bill  of  revivor  not  preferable  to  f<cire  facias,  105,  '3„ 
death  of,  action  for  damages  for  injury  from  act  or  default 

of  defendant,  survivor,  107,  ^^. 
deatli  of,  ponding  action  for  damages  for  injury  survives, 

107,  ^'. 
joint,  d  ath  of  one,  survivor  may  continue  to  prosecute 

suit,  107,  «. 
dt.atli  of  co-plaintiff  in  action  trespass  quare  clausum /regit 

survivor  prosecutes,  107,  ■*^,  et  seq. 
death  of,  administrator  properly  substituted  party,  lOG,  2. 
death  of  woman  leaving  minor  child,  when  may  be  substi- 
tuted as,  lOG,  '. 
and  defendant  same  person,  cannot  be  in  action  at  law,  G, '°. 
person  refusing  to  be  joined  as  may  be  made  defendant, 

G,  *,  etseq.,  30,  K 
defendant,  refusal  to  be  made,  when  inferred,  C,  '. 
when  motion  by,  for  appointment  of  guardian  ad  litem  for 

infant  defendant,  58,  ^'^. 
after  has  ceased  to  be,  rights  of  defendants  will  not  be  de- 
termined, 9,  ■^^. 
in  detinue,  what  title  must  show,  81,  '-'^ 


i>-DEX.  483 

Plaintiff—  Continued. 

when  cannot  recover  in  ejectment,  ?  SO,  '". 

ri^'lits  of  in  action  of  ejectment,  80,  '^,  t^t  t^fq. 

all  tenants  in  common  must  join  in  action  of  ejectment, 

82,  J^. 
executors,  joinder  of  as,  somn  not  qualified,  71,  •'.  '•'. 
joinder  of,  general  rule,  2i,  ^',  94. 
general  rule  in  equity  as  to  joinder  of  parties  as,  9G.  '='. 
cause  of  action  in  favor  of  each  or  either  of  two  persons, 

not  joint,  102.  '-. 
joinder  of,  when  saving  of  expense  not  suftieient  r^.ason 

for,  in  equity,  9G,  '^. 
as  rule  all  joint  trustees  must  bo  joined  as,  32,  "',  (t  acq. 
contract   to  two   for  benetit  of  one,  both  mav  unite  as, 

94,  *. 
joint,  what  proof  necessai'v  to  supp  )rt  action  on  contract, 

9i,  1',  et  seq. 
person  to  be  joined  as  in  action  upon  contract  must  have 

unity  of  interest,  94,  **,  (4  t^eq. 
what  liiust  show  to  maint.dn  interpleader,  114,  ^. 
riglits  of  intervenor  d)  not  help,  111,  ''. 
what  rights  interveiKjr  may  not  contest.  111.  ^. 
lesal  and  equitable  owner  of  note  cannot  be  joined,  102,  '. 
separate  notes  secured    by  same  mortgage  may  sue  alone 

or  jo;ntly,  96,  ',  el  Sf^q. 
who  joined  as,  for  torts.  95. 

when  may  join  in  action  for  injury  from  tortious  act,  95,  ». 
joint,  landlord  and  tenant,  in  action  to  suppress  nuisance, 

79,  '■1. 
joint,  legatees  to  suit  by  executor  to  recover  legacy  upon 

land,  estate  settled,  78,  '*. 
who  may  unite  as,  for  damages  for  flowage  of  lands.  95.  '". 
who  may  unite  as.  to  restrain  maintenance  of  nuisance  iu 

flowing  lands,  95,  ". 
person  without  interest  should  not  bo  made.  20,  ^. 
must  have  what  inter*  st  in  order  to  maintain  action,  31,  '". 
when  all  in  interest  sliould  unite  as,  80.  *. 
person  interested  with  class  c.mnot  sue  for  own  individual 

benefit,  30,  ">. 
wlien  one  person  mav  sue  for  self  and  all  others  interested, 

30,  *,  et  .s>7. 
bill  brought  for  benefit  of,  and  all  others,  etc.,  when  may 

not  be  maintained,  30,  '. 
general  rule  as  to,  who  parts  wirh  interest  pending  suit, 

34.  ^  et  .SV7. 

need  have  no  beneficial  interest  in  note  sued  on,  unless, 

35,  ^^  ^/  .sv'7. 

transfers  interest  in  pending  suit,  cfilct.  cqi;ity.  Code,  IOC,  *. 


484  INDEX. 

Plaintiff—  Continued. 

transfers  interest  pending  suit  to  trustee,  latter  properly 

made  party,  ^  23,  ''. 
liecomes  bankrupt  pending  suit,  (fleet,  53,  ^^,  rt  seq. 
in  pending  suit  declared  to  be  insolvent  debtor  may  still 

l)roceed  in  name  of,  55,  ^. 
is  real  party  in  interest  under  the  Code  -when,  34,  ^-,  et  seq. 
ferae  sole,  marriage  of,  efltect,  107,  ^',   ^-'t  i^eq.,  G-4,  ■*. 
to  entitle  to  relief  on  ground  of  mistake,  9,  -",  el  scq. 
to  recover  for  negligence  of   another   must   be   without 

fault,  38,  •^^. 
beneficial  at  law  need  not  be  named  in  the  record.  2,  ^. 
non-resident,  joint  administrator  need  not  be  made  a  partv, 

71,  1'. 
A.  sues  to  use  of  B.,  when  A.  will  be  considered  the  real 

party.  2,  ^. 
United  States,  when  recognized  as  party,  1,  ^^^. 
misjoinder  of,  effect  in  action  of  assumpsit,  102,  '. 
misjoinder  of,  iii  equity,  effect,  102.  ^. 
misjoinder  in  action  for  tort,  efi'ect,  102,  ■*,  et  seq. 
who  may  object  to  misjoinder  of,  101,  ^  et  fieq. 
misjoinder  of,  when  objection  to  waived,  100,  ^,  el  seq. 
misjoinder  of,  when  objection  made,  102.  '". 
misjoinder  of  parties,  objection  for,  how  taken  advantage 

of,  100,  ^  et  fieq..  9,  '. 
misjoinder  of  parties,  when  defendant  may  demur  as  to  a 

particular,  100,  '^. 
misjoinder  defect  cannot  be  reached  bv  demurrer  to  answer, 

100.  «.. 
misjoinder  of.  objection  reached  by  motion  to  elect,  100,  *. 
co-plaintiffs,  must  be  community  of  interest  between  or 

misjoinder  fatal,  102,  '". 
person  made,  without  his  consent,  name  stricken  out  on 

motion,  102,  '', 
non-joinder  of,  objection,  liow^  raised  in  action  ex  contractu, 

100,  13,  et  seq. 
non-joinder  of.  in  action  of  tort,  (flftct,  95,  ',  et  i^eq. 
non-joinder,  wiien  none  to  bill  brouglit  for  self  and  all 

having  common  interest,  100,  ^^. 
omits  to  make  parties,  when  cannot  take  advantage  of  fact, 

19,  la. 
failing  to  malce  parties  within  reasonable  time  bill   dis- 
missed, 102.  30, 
eff.  ct  of  non-joinder  of  tenants  in  common  as,  in  actions 

for  torts,  8i.  ^. 
non-joinder  of,  when  objection  waived.  100.  "*. 
when  defendant  may  not  force  to  make  new  parties,  104,  ''. 
who  proper,  in  suit  "by  partnership,  88,  *. 


INDEX.  485 

Plaintiff—  Continued. 

executor  of  deceased  partner  cancot  be  joined  with  survivor 

in  action  npon  clann.  §  88,  '■'^,  el  aeq. 
all  parties  arc  ni  partition,  82,  ^'. 
must  have  possession  to  maintain  partition,  82.  •'^. 
in  statutory  action  for  partition  need  have  neither  posses- 
sion nor'right  of,  9,  '^'*. 
must  replead  on  removal  of  cause  to  federal  court,  when, 

9,  ^''^. 
irrec;ularity  in  manner  of  siiing.  avIio  objects,  101,  *. 
joint,  to   bill   by  surety  to  enforce  his  exoneration,  who 

made,  24,  '^, 
when  may  join  all  sureties  upon  separate  bonds  in  same 

action,  8G,  ^^ 
Plank  road,  injunction  to  prevent  improper  interference  witli, 

who  may  maintain,  28,  ^^. 
Plantation  supplies.    See  Supplies  Plantatiox. 
Plea,  of  alienage,  requisites  of,  29,  •*,  et  seq. 

dilatory,  time,  when  commences  to  run  during  wliich  infant 

defendant  must  file,  58,  '^'^. 
of  infancv  by  one  defendant  action  on  joint  contract,  prac- 
tice, 59,  '^. 
of  infancy  is  jjersonal  to  the  infant,  59,  '. 
Plead,  time  to,  general  appearance  does  not  waive,  16,  ^ 
Pleading,  in   action  against  administrator  what  amendment 

proper,  74. 
discharge  of  bankrupt  no  effect  unless  set  up  as  defense, 

54,  ^',  et  seq. 
fact  of  insolvency  of  principal  should  be  alleged  in  suit  by 

surety  for  contribution,  86,  *. 
new  name  of  corporation  defendant,  91,  ^. 
corporation  changing  name,  how  may  sue,  90.  '. 
cross,   must  be   to  enable  defendant  to    recover  against 

co-defendant,  11,  ^. 
of  defendant,  defenses,  9,  2^. 

defendants  to  land  suits  made  by  general  averment,  9,  -'. 
of  intervenor,  effect  of  denials  in,  110,  ". 
person  refusing    to   be    plaintift"  when   made  defendant, 

reason  stated  in,  6,  •*,  et  seq. 
upon  joint  note  of  husband  and  wife,  should  aver  what. 

G9,  «. 
suit  of  wife  must  show,  authorized  to  sue,  03,  ",  pi  seq. 
when  infant  appears  by  guardian,  appointment  should  bo 

shown,  56,  '^^. 
fails  to  show  party  is  an  infant,  not  ground  for  demurrer, 
^      56,  -'^ 

action  upon  instrument  by  one  not  a  party  to  it,  interest 

should  be  set  forth  in,  3i,  ^-. 


Pleading—  Continued. 

contract  by  one  partner  firm  undisclosed,  latter  niaj'  sue, 

proper  allegations  being  made,  ^  88,  ^. 
by  an  officer  of  State  will  not  bind  it,  40,  ^*. 
to  merits  right  of  government  not  to  be  sued,  not  waived 

by,  40,  a. 
supplemental  assignee  of  defendant  made  partv  to  suit  by, 

11,  '. 
in  trover,  when  cannot  be  amended,  38,  •>. 
Pledge,  what  is  87,  ^. 

Pledgee,  of  property,  rights  of,  87,  ^'^,  et  seq. 
Pledged,  property  bill  against  assignee  of  note,  when  assignor 

made  party,  28,  ^. 
Pledgor,  liability  to  pledgee,  upon  secured  debt,  87,  '3,  et  f^eq. 
Policy  of  insurance,  assignee  of  several  interests  in  same,  may 
sue  in  own  name,  36,  ^^. 
uX)on  life  of  A.  made  by  X.,  and  paj-able  to  C,  A.  cannot 

avoid  on  ground  of  fraud  37,  ^. 
B.  obtains  from  X.,  loss,  if  any,  payable  to  A.,  either  A.  or 

B.  may  sue,  37,  ^^. 
when  mortgagor  of  property  need  not  be  party  to  suit  on 
for  loss,  24,  '^^. 
Position,  of  party  to  record,  when  may  be  changed,  G,  ^. 

of   party,  p-rson   having    common    interest  refusing    to 

become  plaintiff  may  be  made  defendant,  6,  *,  et  seq. 
of  party  on  record,  person  defendant  properly  a  plaintiff, 

refusal  to  be  made  so  inferred,  6,  ^ 
of  party,  upon  the  record,  informality  in,  effect,  6,  ^  et  r.eq. 
of  party  upon  record,  objection  properly  raised  by  de- 
murrer, G,  ^. 
of  party  upon  record  in  partition,  6,  ^^,  et  seq. 
Possession,  of  property  will  be  attached  to  proper  capacity  of 
person  to  hold  in,  4,  'o, 
of  property,  person  in,  may  sue  for  damage  to,  38,  ^  et  seq. 
necessary  to  uphold  interpleader,  113,  ". 
X)erson  holding  land  may  maintain  action  for  injury  to, 

though  without  title,  7i),  i. 
of  mining  claim,  who  may  intervene  in  suit  for,  110,  2". 
of  mortgaged  premises,  bill  to  recover,  executor  of  mort- 
gagor proper  party,  22,  i". 
mortgagee  of  personal  property,  when  mav  sue  for  damage 

to  his  interest,  36,  =<". 
of  property,  person  in  may  sue  for  injury  to,  87,  ^  et  seq. 
Post  mortem,  examination,  when  county  liable  to  phvsician 

fur.  42.  i«.  J  I    ~ 

Power,  of  attorney  executed  by  several  legatees,  each  may  sue 
separately  for  his  share  of  legacies  collected,  78,  ^•*.  ' 
of  city,  Avhen  exercised  in  public,  when  in  private  capacity, 


rxDEx.  487 

Power  —  Continued. 

of  corporation,  bill  to  restrain  from  doing  business  in 

excess  of,  p;\rty,^  28,  ^". 
suit  against  corporation  to  recover  stock  transferred  under 

forged,  necessary  party,  25,  '^. 
of  partner  after  dissolution  of  firm,  88,  ",  el  seq. 
Practice,  in  making  new  pavty,  lO-i,  ^ 

in  making  new  party,  regulated  by  court  unless,  104,  2. 
suit  of  infant,  etc.,  name  of  guardian  added  to  that  of,  con- 
sidered better,  3.  ■*. 
Premature,  action  against  ad'-uinistrator,  how  taken  advantage 

of.  75. 
Priest,  when  may  sue  as  corporation,  sole.  90,  *. 
Principal  and  agent,  suits  by  generally,  84, 

suit^  against.  85. 
Principal,  generally  liable  for  acts  of  agent  done  in  course  of 

employment,  85.  ^,  et  seq. 
when  bound  bv  acts  of  agent  in  excess  of  his  authoritv, 

85,  ». 
agent  for  collection  takes  property  instead  of  money  in 

payment  may  be  treated  as  trustee.  85.  -i. 
when  may  sue  upon  contracts  of  agent,  84,  '. 
undisclosed  may  sue  upon  contract  of  agent,  84.  -^ 
undisclosed,   when  liable  upon  contract  of  agent  in  own 

name.  85,  ^^ 
agent  sells  goods  of,  as  his  own  who  may  sue.  84.  ^',  et  seq. 
may  sue  for  deceit  in  sale  of  goods  to  agent.  84.  '"•'. 
foreign,  discharge  in  insolvency  when  no  defense  to  action 

by,  84,  \ 
several  employing  same  agent,  liable  for  acts  of  jointly  or 

severally,  85,  ^. 
cannot  sue  agent  for  nionev  collected  until  after  demand, 

85,  2^. 
nionev  overpaid  to  agent,  efifect  of  bis  pavment  over  to, 

85,  1*,  15. 
note  payable  to  •'•  A.  B.,  agent."  agent  may  sue,  84.  •>. ". 
may  sue  on  note  made  for  him,  payable  to  his  agent  and 

unnegotiable,  84,  ',  et  seq. 
when   liable  to  agent  for  collection,  for  amount  paid  on 

forged  note,  85,  '''^. 
when  factor  sells  goods  of,  with  own  who  may  sue  for, 

84.  23. 
may  recover  purchase  price  of  goods  sold  by  agent.  84,  ^. 
when  may  recover  ])rice,  goods  sold  by  agent.  84.  '^'. 
when  may  collect  whole  of  purcliase  price  of  goods,  from 

buyer  though  part  paid  to  agent,  85,  '^. 
when  may  treat  payment  of  price  of  goods,  to  agtut  as  a 

loan  to'him,  85,  i^. 


Principal  —  Contimied. 

when  liable  to  servant  for  injuries  received  in  course  of 

employment,  ^  85,  *,  et  seg. 
when  agent  sues  in  own  name  as  agent,  should  disclose 

name  of,  8i.  ^. 
action  commenced  by  agent,  substitution  of,  proper,  lOG,  '^K 
undisclosed  action  brought  by  either  principal  or  agent,  3,  ^'. 
when  bound  by  written  instrument  made  by  agent  in  own 

name,  85,  ^". 
and  surety,  suits  by  and  against,  8G. 

on  offic-iaf  bond,  surety  liable  for  what  acts  of,  8G.  s^,  ct  seg. 
debt  of,  paid  by  sui-eties,  when  latter  may  bring  joint  action, 

when  may  suo  alone,  86,  S  et  seg. 
insolvency  of,  right  of  suretv  to  contribution  depends  upon, 

86.  3,  etseg. 
must  have  notice  of  application  of  surety  to  have  judgment 

assigned,  86.  i". 
when  need  not  be  joined  with  suretj'  in  suit  against,  86.  ". 
upon  insolvency  of.  when  surety  may  apply  to  subject  laid 

to  payment  of  debt  of,  86,  ' .  '        ' 
lands  of  surety,  bill  to  subject  to  payment  of  debts  of, 

necessary  parties.  26.  ^'^. 
Privies,  bound  by  legal  proceedings,  7,  K 

as  bound  by  legal  pi'oceedings,  extent,  7,  ^. 
as  bound  by  lei,al  proceedings,  who  includcel  in  term.  7.  ^. 
Probate  court.^  when  proceedings  in  to  sell  lands  of  infant  will 

not  bind  him,  60.  ». 
Probate  judge,  av hen  action  on  bond  of  executor  brought  in, 

49,  «. 
action  in  name  of  upon  bond  although  office  abolished.  32.  '^^. 
efltct  of  resignation  of,  upon  action  in  name  of,  upon  office 

bond,  40,  ^,  et  seg. 
Proceeding,  to  inquire  into  a  public  charity  by  the  attorney- 

general.  relator  in,  when  is  not  a  party  to,  1,  ^'. 
legal,  who  are  bound  by,  7,  *. 
by  rule  or  motion  to  obtain  restitution  of  money  obtained 

under  juelgment.  wliat  demands  noticed,  8,  ^"^Z 
legal,  see  Legal  Proceedings. 
probate,  on  estate  of  living  person  void,  7,  <>. 
when  widow  and  next  of  kin  are  parties  to.  1.  '^''. 
stay  of,  does  not  extend  time  to  make  motion  to  revive 

action,  105,  '■^o. 
Process,  service  upon  foreign  corporation,  91,  •*. 

elefendant  until  severed  with,  not  in  court,  1,  ''\  et  seg. 
service  of,  upon  defendant  wlien  brought  within  jurisdic- 

diction  by  force  or  fraud,  bad,  11,  *. 
after  service  of  defendint,  must  ap])ear  or  quit  the  field, 

14.    ^^.  LL  i 


Process  —  Contimied. 

service  ot  upon  infant  defendant,  §  11,  ',  ft  seq. 

until  infant  defendant    served   with,   guardian   ad  Utevi 

cannot  be  appt)iuted  for,  5S,  ^. 
infant  defendant  may  not  waive  service  of,  58.  =,  ft  spq. 
service  of  iipon  person,  does  not  make  liini  party,  1,  ^.  10-1.  *. 
status  of  sheritf  as  party  tj  suit  to  restrain  execution  of, 

51.  •^'. 
color  of,  deputy  sheriff  directly  liable  for  trespass  under, 

51,  1'. 
want  of  service,  motion  to  dismiss  for,  special  app -arance, 

14.  1^ 
no  summons  issued  within  time  allowed  by  law,  special 

appearance,  14,  i*. 
service  of,  objections  to.  special  appearance,  14.  '^. 
service  of.  appearance  of  defendant  equivalent  to,  IG,  ^ 
appearance  of  defeiidant  waives  defects  in,  IG,  '-. 
service  of  waived  by  appearance  of  defendant  after  default, 

16,  ^•^  et  seq. 
appearance  by  attorney  for  "defendants"  part  not  served 

with,  effect.  15.  i^,  et  seq. 
Prohibition,  right  of  intervention  in,  109,  ^*. 
Profits,  person  to  receive  share  of  in  payment  for  services  may 

sue  for  account  of,  31,  ''. 
Propsr  party,  who  is,  18,  i". 

when  p-rson  charged  Mith  fraud  in  obtaining  a  bill  is,  to 

suit  to  set  aside,  22,  '^. 
heirs  are  to  bill  for  account  of  personal  assets,  when,  22,  ^^. 
heir  of  deceased  partner,  to  bill  for  account  of  partnership, 

24,  H. 
to  suit  for  injunction,  28.  '^^,  et  seq. 
who  is  to  suit  by  insurance  company  to  set  aside  release 

from  policy  holder  to  wrong-doer,  24,  ^'. 
insane  person  is,  in  suits  relating  to  his  lands.  21,  •',  el  aeq. 
to  suit  by  assignee  of  insolvent  to  recover  propiTty  of,  24.  -''. 
to  suit  for  conveyance  of  lands  by  person  claiming  title 

under  tirm,  25,  -,  et  seq. 
■who  are  to  suit  by  lienholder.  7,  ^^,  et  seq. 
to  suit  to  enforce  mechanic's  lien,  27,  '■*.  et  seq. 
mortiragee  of  land,  not  to  suit  of  plaintifl",  for  monev  only, 

24,  •*'. 
to  suit  to  foreclose  mortgage,  27,  "*,  et  seq. 
when  administrator  of  heir  of  deceased  partner  to  declare 

trust,  25,  «. 
to  money,  rule  against  sheriff  for  proceeds  of  partnership 

property,  paid  into  court,  25.  ". 
when  officer  is  not,  to  bill  for  injunction,  103.  -. 
to  bill  by  surety  to  enforce  contribution,  21,  '^,  et  seq. 


190  INDEX. 

Proper  T^rty  —  Continued. 

■\Yiiiit  of  to  equitable  action  not  jurisdictional  defect,  ^  7,  ^=. 
to  equitable  action,  absence  of,  not  jurisdictional  defect, 

7,  k 
to  suit  to  enforce  vendor's  lien  upon  land,  27,  '". 
suits  relating  to  separate  pioperty  of  "svife,  husband  is,  21,  ^'^. 
Property,  iaminvable  rights  of  alien  to,  2'J,  ^. 

lost,  when  is,  who  entitled  to  custody,  87,  i**,  et  seq. 
statute  provides  nietliod  of  leacliing  must  be  strictly  fol- 
lowed, 12,  «. 
movables,  in  what  capacity  person  sued  for,  87,  '^. 
of  non-resident.  State  may  subject  to  satisfaction  of  claims 

of  its  citizens,  12,  2. 
of  non-resident,  jurisdiction  over  acquired  by  seizure,  12,  ^. 
person  in  possession  of,  may  sue  for  damage  to,  87,  ^,  et  seq. 
person  holding  has  several  capacities,  possession,  4,  ^". 
sheriff  may  unite  with  parties  to  delivery  bond  in  suit  in 
equity  fi>r  the  pi-otection  of  the,  51,  •*. 
Prosecutsd,  in  name  of  real  partv  in  interest,  meaning  of  term. 

31,^ 
Public,  wlicn  must  bring  action  to  obtain  redress  against  cor- 
poration. 91,  ^^. 
agent,  effect  of  contract  of,  85,  ^^,  et  seq. 
money,  when  tax  paver  niav  sue  for  benefit  of  self  and  all 

others,  30,  «. 
nuisance,  damage  to  private  person,  Avhen  may  sue,  CO,  ^^. 
nuisance,  remedy,  indictment,  SO,  i",  et  seq. 
ofiicers.     See  OrViCEns  Public. 
right,  mandamus,  Avho  relator,  30,  ^. 

use,  land  taken  for,  administrator  may  sue  for  damages,  73. 
use,  bill  to  restrain  taking  lands  for,  necessary  parties,  28,  ^'J. 
Publication,  of  copy  of  atlas  sold  by  one  member  of  firm, 
necessary  parties,  28,  ^'. 
of  notice  of  bankruptcy,  effect  on  pavment  of  debt,  53,  ^-K 
death  of  defend.mt  before,  completed',  cftlct,  12,  '. 
jurisdiction  over  unknuwn  heirs  acquired  bv,  13,  '. 
infant  may  be  served  by,  13,  •*. 
jurisdictiem  of  court  not  acquired  bv,  13,  «. 
copy  sent  by  mail,  suflficiencv  of,  13,'  ^  et  seq. 
usual  manner  of  warning  nc)n-resielent  parties,  12,  ■*. 
of  summons,  non-resielent  defendants  served  bv,  extent  of 

juriseliction  of  court  over,  13,  1. 
not  sufficient  service  of  summons  on  non-resielent  in  per- 
sonal action,  13,  ^. 
of  summons,  waiver  of,  when  amounts  to  appearance,  14,  5. 
Purchase  price,  agent  may  not  accept  before  elue,  principal 
not  liable,  85,  ^K  '  1  i 

of  goods  sold  by  factor,  when  latter  may  sue,  84,  =3,  et  seg. 


IKDEX.  491 

Purcha83  Price  —  Continued. 

of  lauds  of  wife,  when  debt  of  husband  mav  be  deducted 

from,  ?  66,  ■*^. 
lan'l  sold' by  substituted  agent,  who  sue  for  price,  8-1.  ^K 
of  1  m  1,  when  suretv  may  sue  to  subject  the  laud  to  jiav- 

ment  of,  8G,  ^.       " 
of  land.    See  Vendor's  Liex. 

of  land,  suit  to  enforce  litn  for,  necessiry  parties,  27,  '^. 
of  land,  joint  note,  when  co-makers  may  sue  for  reci-sion 

of  sale,  96,  '•^. 
when  one  tenant  may  recover,  for  standing  grass  sold  from 

common  property,'  82,  '^^. 
Purchaser,  of  property  of  bankrupt,  when  may  sue  for  in  own 

name,  54.  ^,  el  ficq. 
of  execution  sale,  suit  bv,  to  dispossess  husband  of  lands 

of  wife,  party,  26,  '^'^. 
at  execution  sale,  when  may  sue  for  rent  of  real  premises, 

80,  •^". 
of  lands  from  executor,  rights  of,  when  evicted  by  heir,  73. 
of  lauds  of  debtor,  when  necessary  party  to  suit  "to  subject 

to  ])aynient  of  debts  of,  26,  '*^. 
of  mo;  tgaged  premises,  when  need  not  be  party  to  fore- 
closure suit,  7,  ^^. 
pendentt:'  Ute,  when  may  be  party  to  foreclosure,  5,  **. 
when  may  intervene  in  suit  for  partition,  110,  ^^ 
of  land  from  vendee,  parties  to  suit  to  enforce  vendor's 

lien.  27,  «. 
of  vendee,  vendor's  lien,  suit  to  enforce  against,  necessai7 

parties.  27,  *. 
Quasi  party,  when  relator  becomes,  1,  ^7. 
when  sureties  on  bond  become,  1,  '^^. 
Quiet  title,  when  equity  will  not  entertain  bill  to,  6G,  "^'K 
in  ejectment,  intervention  not  proper  to.  110.  ^^ 
when  husband  and  wife  may  unite  in  bill  to,  66,  ^i. 
to  lands  necessary  party  to' suit  to.  26,  '^^,  et  seq. 
to  land-,  when  cestui  que  tniM  need  not  be  party.  26,  ^'-. 
to  lauds,  when  executor  need  not  l)e  party  to  suit  to,  26,  ^^. 
to  lands,  when  holder  of  unrecorded  deed  not  made  partv, 

26,  «^ 
plaintiff  must  recover  if  at  all  upon  allegations  of  his 

complaint,  9,  ^s. 
stranger  cannot  become  party  to  suit  to,  5,  ^*, 
tenants  in  common  may  join'^in  suit  to,  82,  ^. 
when  wife  may  not  intervene,  110,  ^^. 
Quo  warranto,  proper  method  to  test  validitv  of  corporation, 

91,  3». 
no  right  of  intervention,  109.  '•*. 
against  single  officer  of  city  latter  not  party,  44,  '^. 


492  IKL>£X. 

Quo  Warranto  —  Cont'imied. 

when  brought  in  name  of  State,  §  39,  ". 
Railroad    Co.,  when    liable   for    misleading  announcements, 

91,  ^». 
injunction  to  prevent  payment  of  proceeds  of  sale  of  land 

to,  28,  30. 
Eeal  action.     iSee  Actions  Real  ;  Land. 

deatli  of  defendant,  abated,  new  cause  of  springs  up,  105,  *. 
tret^puss  qiuire  clausmn  fregit,   death  of  one  of  several 

defendants,  effect,  105,  &. 
Real  party,  who  is,  2,  ^ 

wiien  bankrupt  may  not  be  to  action,  53,  ^ 

suit  by  contractor  to  use  of  city  on  special  tax  bill  for  street 

improvements,  latter  is  not  the,  2,  ^'. 
Real  party  in  interest,  proper  plaintiff  in  chancery,  2,  ">. 
WHO  is  under  Code,  31,  ^,  et  seq. 
when  suit  in  name  of  corporation  amended  by  substituting 

names  of  stockholders  as  the,  90,  ^-. 
when  maj'  sue  on  bond,  36,  ',  et  seq. 
when  may  sue  upon  an  unnegotiable  chose,  34,  ". 
holder  of  contract  under  seal  in  form  of  note,  mav  sue  as, 

35,  28,  et  seq. 
either  in,  trustee  of  express  trust  may  sue  contract  for  ben- 

etit  of  third  person,  37,  ■*. 
of  demand,  35,  ^'^,  et  seq. 

holder  of  note  and  guaranty  transferred  by  verbal  assign- 
ment is,  may  sue  in  own  name,  35,  ^,  et  seq. 
when  plaintiff' is,  31,  i-,  et  seq. 

action  "  prosecuted"  in  name  of,  meaning  of  term,  31,  '^. 
as  general  rule  must  maintain  suit,  31,  ■^. 
Real  plaintiff,  at  law  need  not  be  named  in  the  record,  2,  3. 
real  party  in  interest  is  in  chancery,  2,  ^. 
relator  on  guardians  bond  is,  2,  ^'^/ 
Receiver,  appointment  of  generally,  52,  ^  et  seq. 

breacii  of  bond  of,  failure  to  pay  over  money  borrowed 

before  appointment  is,  52,  ^o. 
foreign,  when  may  sue,  52,  ^^. 

liability  for  goods  entrusted  to  his  care,  52,  ^^  et  seq. 
riglit  to  intervene,  110,  ">. 
when  may  maintain  suit  to  set  aside  sale  of  property  of 

judgment  debtor,  52,  ^^,  et  .'ieq. 
when  represents  all  members  of  organization,  mav  sue  on 

for  debt  due  all,  52,  ^'^. 
appointment  pending  suit,  action  continued  "  for  his  her 

efit"52,  ',  eiseq. 
for  defendant  in  pc  nding  suit  must  be  made  party  bcfo; 

can  he  heard,  52,  ^j,  d  seq. 
death  of  pending  suit,  successor  substituted,  52,  ^^. 


jy-DEX,  493 

Receiver —  Continued. 

when  remedy  against  must  be  by  petition  in  original  action, 

§  52,  »i.     ' 
clients  and  profits  may  not  sue  to  set  aside  fraudulent 

eonveyauce,  52,  i'. 
may  sue' in  whose  name,  52,  ^. 
when  may  be  sued  directly,  52,  '■^'^. 
cannot  be'  sued  except  by  leave,  52,  ^o,  et  ?eg. 
extent  of  rule  as  to  no  suit  against  without  leave,  52,  ^J. 
order  granting  right  to  sue,  power  of  court  over,  52.  '^'^. 
ordt-r  granting  right  to  sue  maybe  revoked,  52,  --,  et  seq. 
actioa  for  trover,  when  may  be  brought  in  name  of.  52,  ^'^. 
trover,  when  action  for  may  not  be  brought  in  name  of, 

52,  ». 
title  of  to  tlie  trust  property  dates  from  bond,  52,  ^, 
may  not  sue  to  enforce  resulting  trust  of  judgment  debtor, 

52,  J2. 
administrator  wasting  assets,  who  may  apply  for  appoint- 
ment of,  75. 
appointment  of  under  national  bank  act,  does  not  dissolve 

corporation,  91,  ^^. 
of  bank,  properly  made  party  defendant  in  suit  to  recover 

special  deposits,  52,  '^'^. 
liability  as  common  carriers,  52,  -'. 

authority  of  to  sue  for  corporation,  when  must  appear,  90,  ^i. 
will  not  be  vested  with  management  of  general  business  of 

corporation,  52,  ^,  et  seq. 
corporation  in  liquidation,  when  appointed,  91,  '^^. 
when  may  sue  to  set  aside  judgment  against  corporation, 

collusion  of  officers,  52,  ^*'. 
of  corporation,  action  by  to  enforce  payment  for  stock, 

defense,  93,  i^. 
for  corporation,  when  not  liable  to  trustee  process,  91,  ^*. 
after  appointment  of,  in  creditor's  suit  he  is  proper  person 

to  enforce  judgment,  8.  '^^. 
when  partner  may  file  bill  for  appointment  of,  88,  ^i. 
of  partnership  property,  when  must  sue  in  firm  name,  88,  ^'. 
co-partner  insolvent,  g'round  for  appointment  of,  in  suit  by 

partner  against  for  settlement,  55,  ^■^. 
Ptscord,  of  court,  imports  absolute  verity,  10.  ^^. 

of  coiirt,  partv  present  or  absent,  onlv  as  is  shown  bv, 

11,-. 
of  court,  in  absence  of  proof  of  jurisdiction  over  parties, 

presumption,  10,  ^'^,  et  .seg. 
of  court,  when  presumption  as  to  jurisdiction  from,  ceases, 

10,  ^-K 
appointment  of  guardian  ad  litem  for  infant  should  appeal 

of,  58,  1^  60,  6. 

Parties  —  42 


494  INDEX. 

Hecord  —  Continued. 

liosition  upon,  immaterial  of  parties  to  suit  for  partition, 
i  28,  ". 

must  show  that  State  U  entitled  to  prosecute  or  action  fails, 
39,  «. 
Kecorier,  county,  -when  not  necessary  party  to  suit  to  cure 

misdescription  in  deed,  2G,  '■^^. 
Eecovery,  must  be  had  upon  status  of  parties  at  commencement 
of  action,  9,  ^ 

amount  of  in  action  of  ejectment,  9,  ^. 

in  ejectment,  if  at  all,  must  be  on  title  of  plaintiff,  9,  ^^. 

in  action  of  ejectment,  amount  of,  80,  ^^. 

amount  of  in  action  by  one  partner,  co-partner  made  de- 
fendant, 83,  1". 
Redeem,  avIio  may  nut,  mortgaged  premises,  5,  ^^. 
Eedeem,  till  to,  necessary  parties,  28,  ^,  et  seq. 

by  assignee  of  mortgagee,  necessary  parties,  28,  ^". 

by  last  assignee  of  mortgage  when  only  necessary  defend- 
ant, 28,  *. 

mortgage,  when  trustee  may  sue  alone,  32,  i**. 

mortgagees  may  be  parties  to,  28,  ^i. 

by  debtor  against  assignee  of  note,   to  recover  pledged 
property,  party,  28,  '^, 

suit  bv  widow  entitled  to  dower,  proper  parties  defend- 
ant, 28,  5. 
Hedress,  for  breach  of  duty  imposed  by  statute,  9,  ^". 

infants  aggrieved  by  decree,  how  may  proceed  to  obtain,  1,^'^. 

person  may  have  in  equity  wiien  otherwise  he  would  be 

obliged  to  resort  to  foreign  court,  9,  ^^. 
Reform,  contract,  suit  to  on  ground  of  mistake,  26,  '^^,  et  seq. 

deed  of  trust,  when  wife  need  not  be  party  to  suit,  69,  ^^. 
Relf-tion,  of  principal  and  surety,  in  suit  against  latter  when 
not  entitled  to  have  established,  86,  ^i,  et  seq. 

as  between  near,  law  will  not  imply  contract  to  pay  for 
board  and  lodgings,  83,  3. 
Relator,   in  proceeding  by  attorney-general  to  inquire  into 
public  charity,  is  not  a  party,  1,  ^^ 

suit  to  enforce  execution  of  charity,  who  should  be,  48,  '. 

on  guardian's  bond,  stands  as  real  plaintiff,  2,  ^". 

infant  by  next  friend,  suit  by,  upon  bond  of  former  guard- 
ian proper,  57,  21. 

mandamus  to  enforce  act  of  legislature  or  common  law,  30, 1. 

death  of,  in  suit  on  official  Lond  causes  abatement,  39,  ^-. 

in  suit  upon  official  bond,  who  must  be,  36,  °. 

in  suit  on  official  bond,  is  real  party,  39,  ^S  et  seq. 

when  becomes  quasi  party,  1,  2-. 

in  q)io  xmrranto  to  test  validity  of  election,  is  partv  ag- 
grieved, 39,  «. 


ES-DEX.  495 

Release,  suit  to  have,  set  aside,  proper  part}',  ^  2i,  ^'. 

of  one  joint  -wrong-doer,  eft'tct.  98,  ». 
Eelief,  Code  practice,  any  applicable  to  facts  gi-anted,  9,  •*. 
on  ground  of  mistake  to  obtain,  must  be  mutual,  9,  -". 
Rem,  prriceeding  in,  bind  every  one,  7,  ^ 
Remainder  man,  when  may  sue  to  remove  cloud  from  title, 

79,  11,  1-'. 
Remedy.    See  Statttory  Eejeedt. 
of  surety  for  contribution,  8G,  ^. 
of  administrator  of  defendant  for  failure  of  plaintiff  to 

make  party,  106,  -i. 
■when  each  obligee  has  distinct  and  separate,  on  attachment 

bond.  86,  ^". 
to  impugn  validity-  of  corporation,  what  is,  91,  ^". 
by  suit  of  county  derived  from  statute,  41,  ^. 
Avhen  intervention  is  not  proper.  109,  ''. 
of  creditors,  when  assignee  refuses  to  prosecute  suit  in 

favor  of  estate,  53,  **,  et  seq. 
statute  imposes  duty  and  provides  particular,  onlv  redress, 

9.  1". 
law  will  raise  when,  9,  i*^. 
jperson  attempts  to  pursue  two  at  same   time   for  same 

wrong,  mubt  elect,  9,  ^. 
name  of  State,  attorney-general  and  county  attorney  may 

use  to  pursue  any  remedy,  18,  ^,  (t  seq. 
by  action,  when  person  has'  none  against  State,  40,  ",  ot  seq. 
against  survivor,   must  be   exhausted    before   proceeding 

against  estate,  9,  *^. 
Removal  of  cause  to  federal  court,  plaintiff,  when  must  re- 
plead, 9.  -\ 
Rent,  when  administrator  may  sue  for,  73. 

of  lands,  when  heir  may  s\ie  administrator  for,  78,  -". 
assignee  of,  right  to  sue  fur,  36,  -",  et  seq. 
and  profits,  receiver  of,  no  power  to  sue  to  set  aside  fraud- 
ulent conveyance,  52,  i'. 
of  lands  of  wife,  who  may  sue  for,  66,  ^i,  p(  seq. 
and  profits,  suit  by  widow  to  recover  dower  interests  in, 

))arties,  26,  •*". 
collateral  security  given  for  payment  of,  landlord  may  sue 

for  injury  to  his  rights  in,  79^  i^. 
express  contract  to  pay,  not  necessari",  80,  i^. 
of  laud,  note  given  tor.  when  assignee  may  recover  from 

pui-chaser  of  crop,  35,  ^'-,  79,  J^. 
part  of  crop,  tenant  may  maintain  action  for  trespass  upon, 

79,  3-^ 
premises  leased  for  term  of  years  for  gross  amount  action 

indivisible.  79.  i^. 
on  death  of  landlord,  who  entitled  to,  79,  i^. 


496  rxDEX 

Reat  —  Conimxic^l. 

when  would  be  climinished  by  sublease  of  jjremises  admin- 
istrator may  enjoin,  g  73. 

asiiguee  of  insolvent  lessee  party  to  suit  to  set  aside  lease 
for  non-payment  of,  55,  ^^. 

Avhen  purchaser  at  execution  sale  may  sue  for,  80,  ^o, 

tenant  liable  for,  although  he  never  held  possession  of 
demised  premi-es,  79,  ^^. 

when  tenant  and  his  surety  may  be  jointly  sued  for,  80,  i^. 

when  tenants  in  common  may  maintain  joint  action  to  re- 
cover, 82,  ^^  et  seq. 

joint  action  for,  when  will  not  lie  against  heirs  of  deceased 
joint  tenant,  82,  ^t*. 

when  joint  tenant  cannot  recover  from  a  co-tenant,  82,  '-^K 

right  of  action  for  is  in  surviving  tenant,  82,  '^'^. 
Repair,  failure  to,  when  landlord  liable  to  tenant  for,  80,  -,  ^. 

wlien  joint  tenant  cannot  recover  for,  from  co-tenant,  82.  -^. 

when  tenant  liable  for  non-repair  of  leased  premises,  83,  ^,  ^. 
Replea:!,  when  plaintiff  Avill  be   required  to,  on  removal  of 

cause  to  federal  court,  9,  ^^. 
Replevin,  when  mortgagee  of  personal  property  may  maintain, 

when  joint  action  will  lie  against  officer  and  creditor  for 

goods  attached,  98,  i«,  et  seq. 
against  officer,  substitution  of  defendants  in  action,  lOG,  2U. 
death  of  a  party  to  action,  effect,  107,  ^',  et  seq. 
when  partner  may  maintain  against  co-partner,  88,  ^". 
when  sureties  on  bond  of  defendant,  may  intervene  in,  86,  '^'^. 
forthcoming  bond,  bankrupt.'y  of  principal  no  defense  to 

surety  in  action  upon,  8J,  ^^^  22_ 
when  wife  cannot  maintain  against  attaching  creditors  of 

husband,  65,  •'. 
wife  cannot  maintain  against  hus^band,  67,  <^. 
bond,  when  shei-iff  may  sue  upon,  51,  ^. 
bond,  one  of  two  obligees  on  becomes  insolvent,  suit  on  by 

solvent  obligee  alone,  55,  ■*. 
Rsstitution  of  money  or  propertv  obtained  under  a  judgment, 

wiiat  demands  noticed,  8,  ^«. 
Revised  statutes,  Indian  may  be  sued  under,  29,  -\ 

is  not  new  suit,  71,  i'->. 
R3vival  of  action,  does  not  necessarilv  carrv  Avith  it  whole  of 

I)rior  riglit  of  action,  107,  ^". 
when,  in  name  of  co-defendant  as  administrator  of  deceased 

plaiutiflt;  71,  ^0. 
Revivor,  when  none  against  foreign  administrator,  105,  ^^ 
Avho  may  maintain,  105,  '^-K 
after  appeal    perfected    one    joint  appellant  dies,   either 

party  may  have,  103,  \ 


INDEX,  497 

Kevivor  —  Continued. 

death  of  sole  defendant,  when  there  will  be  no,  §  105,  i*. 
on  death  of  sole  defendant,  in  whose  name,  IC'o,  ^-. 
defendant  having  beneficial  interest  may  tile  bill  of,  for 

purpose  of  appeal,  105,  ^i. 
djath  of  defendant,  no  administrator,  against  heirs,  105,  ^''. 
death  of  defendant  in  action  to  condemn  lands,  in  name  of 

heir  or  devisee,  105,  ^'^. 
death  of  defendant  in  proceeding  to  foreclose  mechanic's 

lien,  no:.e,  107,  ^^^ 
of  suit  in  equity  after  abatement  is  not  new  suic,  105,  ". 
of  judgment,  eifjct  upon  lien,  105,  '-. 

suit  in  equity  abated  by  marriage  of /erne  sole  j)laintiff  can- 
not proceed  without  bill  of,  107,  ^-. 
on  death  of  sole  plaintiff,  who  may,  105,  2:2, 
death  of  plaiutifl' pending  suit,  when  must  be,  71,  ^^\ 
bill  of,  wlien  executor  of  deceased  complainant  ibot  ncces- 

saiy  party  to,  22,  =*. 
plaintiff  dies  pending  action  for  specific  performance,  who 

should  bring,  78,  ^e. 
possessory  action  against  whom  revived,  76. 
stay  of   proceedings,   does  not  extend  time  for  making 

motion  for,  105,  -^. 
of  suit,  upon  death  of  wife  in  action  bv  husband  and,  ui^cn 

dJjt'of,  63,  i«. 
Eights,  who  vindicate  in  an  action,  8.  ^. 
of  alien  enemy  as  defendant,  29,  1^. 
of  assignee  in  action  by  assignor  for  upon  non- negotiable 

chose,  34,  3. 
person  beneficially  interested  in  contract  in  equity  en- 
forces in  own  name,  31,  *^. 
intervenor  must  show  what,  110,  ^. 
intervention,  when  proper,  110,  -, 
of  parties,  Btate  constitution,  federal  courts  determination 

of,  under  State  law,  8,  **. 
may  be  pursued  in  any  court  having  jurisdiction.  8.  '. 
of  person  cannot  be  concluded  before  he  has  had  his  day  in 

court,  7,  '. 
of  party,  foreign  land  affecting,  how  enforced,  0,  '^■K 
of  action  created  by  statute  unknown  to  common  l.-.v.-,  time 

to  sue,  jurisdiction.  8.  '-^i,  et  scq. 
of  a  party,  must  be  vindicated  in  liis  own  name,  3,  -'. 
exception  to  rule  that  will  not  be  determined  unkss  partv, 

28,  ^\ 
not  lost  by  being  made  party  by  supplemental  pleading.  8,  -o. 
of  defendants,  not  determined  af  :er,  when  no  plaintiff,  9,  ''•'. 
private,  who  should  enforce,  £0.  -,  it  .-^rq. 
public  mandamus  to  enforce,  relator,  SO,  K 


498  IKDEX. 

Kiglits  —  Continued. 

of  party,  recovery  must  be  ■upon  as  they  existed  at  com- 
mencement of  the  action,  ^  'J,  ^ 
of  party,  will  not  be  settled,  when  indispensable  party 

absem,  7,  **. 
to  sue  the  State,  matter  of  favor  to  be  construed  strictlv, 

40,  «. 
ultimate,  of  parties  defendant,  when  will  not  be  settled  in 
suit,  9,  -i". 
Rioters,  town  may  sue  for  destruction  of  property,  45,  ^-. 
Eoad  district,  wlien  may  not  be  party  as  a  corporation,  20,  ". 
Rule,  as  to  inquiry  into  abuse  of  "beligerent  power,  inquiry 
into,  29,  ^«, 
for  making  parties  to  suit  in  equity,  rule  of  convenience, 

exceptions,  19,  ^,  d  seq. 
as  to  making  insane  person  party,  same  in  law  and  eqtlit}', 

21,  «. 
as  to  who  is  the  real  party  in  interest,  31,  ^,  el  seq. 
Salary,  palilic  officer,  kept  out  of  office  by  intruder,  may  re- 
cover, 47,  ^^. 
Sale,  of  goods  by  agent  as  his  own,  who  may  sue,  price,  84,  '^'', 
false  represent  ations  made  in  sale  to  agent,  principal  may 

sue  for,  84,  i«. 
of  whole  interest  in  chattel  by  tenant,  estate,  reversioner 

may  recover  for,  38,  -. 
of  lands  fV)r  delinquent  tax,   what  sufficient   to   support 
action  for  fees,  50,  ^. 
Satisfaction,   payment  of,  judgment  to  nominal  party  with 
notk-e  is  not,  2,  i^. 
can  be  but  one,  in  action  for  tort,  98,  3. 
School  district,  suit  against  should  be  in  its  name,  4G,  ^^  et  seq. 
not  liable  for  defective  condition  of  school-house  or  Vard, 

40,  ^-^  et  seq. 
injunction  io  prevent  payment  of  interest  on  bond  by  tax, 

necessary  party,  28,  ^i/ 
tax,  when  'illegally  collected,  remedy,  46,  22,  et  seq 
consolidated,  liability  to  teacher  for'aervices,  46,  ^i. 
School-house,  city  not  liable  for  unsafe  condition  of,  44,  i». 

scliool  district  not  liable  for  defective  condition  of,  4^1  25. 
Scaool  lands,  injunction  to  restrain  collection  of  tax  on  comty, 

prop  r  party,  28,  28. 
School  money,  all  ordinary  suits  for  brought  in  name  of  coOity, 
41,5. 
suit    for    recovery  of,   arising  on  bond  of  co-treasurer, 
brought  in  name  of  State,  41,  *,  et  seq. 
School  tax,  when  one  tax  payer  mav  not  sue  for  self  and  all 
others,  etc.,  to  restrain  collection  of.  80.  «. 
State  of  Nevada  proj^erly  sues  for  (statute),  39,  ^^. 


i>-DEX.  499 

School  teacher,  liability  of  consolidated  school  district  for  pay 

of.  \  -iG,  -I. 
Scire  facias,  none  after  expiration  of  time  limited  by  statute  in 
relation  to  abatement  of  actions,  105,  ^^  ei  scq. 

against  heirs,   partv  dies  after  appeal,  no  administrator, 
lOS.  ». 

judgment  npon,  105,  ^i. 

•uhen  bill  of  revivor  not  preferable  to  on  death  of  partv, 
1C5.  1**. 
Script,  State  auditor  may  enjoin  payment  of  taxes  in,  50,  '. 
Security,  plaintiff  in  foreclosure  may  abandon  and  take  judg- 
ment on  note,  8,  -•^. 
Seduction,  wlien  action  lies  for  of  child,  83,  ^,  ot  seq. 

what  is  no  defense  to  action  for,  83,  ',  et  seq. 

death  of  plaintiff,  effect,  88,  ^-. 

theory  of  action  for,  83,  ^".  et  aeq. 
Seller,  nt'licpTor,  when  several  not  jointly  liable  to  same  suit, 

98.  ^. 
Separate  property  of  wife,  she  may  sue  in  relation  thereto 
alune,  (313,  1. 

or  may  unite  with  husband,  66.  ^. 

liable 'for  anti-nuptial  debts  of.  63,  ". 

when  she  may  maintain  ejectment  for,  66,  ^*^. 

ejectment  for,  she  sued  alone,  69,  ^-. 

husband  proper  party  in  suits  relating  to,  21,  ^'^. 

husband  proper  defendant,  24,  ^'-.  et  seq, 

suit  for,  husband  defendant  death  of,   when  heirs  of  made 
p:u-tios,  21,  ^». 

bill  to  restrain  sale  of,   for  debts  of  husband,  necessary 
parties,  28,  -i*^. 

when  sought  to  be  subjected  to  payment  of  demand,  hus- 
band proper  defendant,  69,  ". 

where  distributive  share  in  estate  of  decedent  is,  she  may 
sue  alone,  66,  ■•^. 

fraudulently  loaned  by  husband  she  may  recover.  65,  •*". 

husband  loses  at  gaming,   he  may  sue  to  recover  back, 
66,  s. 

when  husband  and  wife  may  sue  jointly  for  injury  to  pos- 
session of  land,  66,  -'«, 

either  husband  and  wife,  or  latter  alone,  may  sue  for  price 
of  land,  66,  ^s. 

when  both  husband  and  liable  for  services  upon.  C8.  ^. 

interest  in  mortgaged  premises,  she  made   defendant  in 
foi'eclosure,  69,  i*,  et  seq. 

she  is  necessarv  partv  to  suit  to  subject  to  pavment  for  sup- 
plies. 21,  15. '  ' 

damages  for  tort,  when  she  may  sue  alone.  65,  '^^. 

when  trustee  of  must  be  party  to  suit  relating  to,  21,  ^'. 


500  INDEX. 

Servant,  enticing  from  employment,  master   Las  action  for, 

•when  principal  liable  to  for  injuries  received  in  course  of 
employment,  85,  ■*,  et  seq. 

when  master  not  liable  jointly  with  for  acts  of,  83,  21. 

Avhen  master  liable  to  for  negligence,  83,  ^j,  '^'■^. 

liable  to  master  for  negligence,  83,  1*. 

■when  action  lies  for  seduction  of  minor  child,  83,  »,  et  seq. 

extent  of  recovery  for  services,  83,  2- ,  et  seq. 

tortious  acts  of,  who  liable  for,  83,  '^^,  et  seq. 
Ssrvices,  action  for,  against  administrator  ^^eurfenie  lite,  75. 

uocessarv  partv,  bill  to  restrain  city  from  paying  fire  mar- 
shal for,  28,  "32. 

when  master  may  sue  for,  83,  i^. 

when  one  part  owner  may  maintain  assumpsit  for,  against 
co-owner,  81,  ^j. 

person  ta  receive  portion  of  profits  as  payment  for,  may 
sue  for  accounting,  87,  i'. 

money  paid  to  public  officer  for,  when  recovered  back,  47,  ^". 

liability  of  consolidated  school  district  for,  4'J,  -'. 

performed  upon  separate  property  of  wife,  when  both  hus- 
band and  wife  liable,  G8,  ^a. 

extent  of  recovery  of,  by  servant,  88,  '^'',  et  seq. 
Set-oflf,  wlien  equity  will  permit  against  insolvent  joint  judg- 
ment creditor,  55,  ». 
Settlemsnt.  of  estate  of  decedent,  necessary  parties  to  bill  for, 
22,  ■^^. 

of  admmistrator,  when  sureties  of  proper  parties  to  suit  to 
set  aside,  86,  2<. 
Several  obligations,  secured  by  mortgage  to  several  persons, 

how  enforced,  82,  ^',  et  seq. 
Severance,  of  cause  of  action  upon  contract,  94,  ''. 

of  joint  demand  by  debtor,  separate  actions,  31,  ^'^. 

demand  against  town  which  subsequently  becomes  two 
towns,  separate  suits  against  each,  46,  '. 
r.ewers,  city  liable  for  negligent  construction  of  sewers,  44,  ^". 

city  not  liable  for  failure  to  provide  sufticient,  44,  ». 
ijheep,  bailee  may  sue  for  possession  of,  87,  ^^ 

injury  to  bailee  may  sue  for,  87,  ^^ 
5ii3ri2   liability  for  failure  to  levy  attachment,  51,  ^«,  et  seq. 

when  assignee  of  bankrupt 'may  not  proceed  against   to 
recover  attached  pvoixn'ty,  53,  J^. 

may  sue  upon  bonds  taken^in  official  capacity,  51,  1,  et  seq. 

may  sue  upon  bail  bond,  51,  2. 

may  unite  in  suit  in  equity  with  parties  to  delivery  bond 
for  protection  of  property,  51,  =^, 

when  no  action  against  for  failure  to  take  forthcoming  bond 
in  trover,  51,  i». 


DTDEX.  501 

Snerifc — Contlmiea. 

^viieu  may  sue  upon  replevin  bond,  v  51,  ^^ 

unnegotiaLle  demand  attached  by," may  not  sue  upon  in 
own  name,  51,  ^. 

action  against  for  default,  does  not  survive,  76. 

(Ohio),   when  no   action  against  for  imprisoning  debtor 
with  felons,  51,  ^^. 

action  against  for  default  of  deputy,  when  survives,  7G. 

action  against  for  tortious  acts  of  deputy,_description  of, 
51,  la. 

and  deputy  cannot  be  jointly  sued  for  a  tort  of  the  deputy 
alone,  51,^^. 

deputy,  directly  liable  for  trespass  committed  under  cclor 
of  process,  51,  i-. 

execution  sale,  action  for  price  of  goods  brought  in  name 
of,  51,  ^ 

liable  for  execution  sale  of  property  of  stranger  to  writ, 
individually,  not  on  bond,  51,  ^i. 

property  sold' under  several  executions  may  compel  inter- 
pleader, 51,  ''. 

action  against  for  escape,  insecure  jail  no  defense,  51,  i". 

when  not  necessary  party  to  bill  to  enjoin  judgment,  28,  •*-. 

action  for  misfeasance  oi' does  not  survive,  51,  '^K 

may  sue  for  money  overpaid  to  judgment  creditor,  51,  ^. 

failure    to    pay  over  money  collected,   no  action  before 
demand,  51,'--. 

when  demand  for  money  collected  by  deputy,  is  equivalent 
to  demand  of,  51,  ~^. 

funds  of  firm  paid  into  court,  proper  parties  to  money  rule 
against,  to  recover,  25,  ii. 

and  predecessor,  when  no  joint  action  against,  51,  -". 

levy  upon  property  claimed  by  third  person,   may  not 
compc  1  interpleader,  51 ,  *^. 

status  of,  action  to  restrain  execution  of  process,  51,  -^ 

mav  recover  for  tort,  gooels  attacheel  taken  from  possetsion 
o'f,  51,  s. 

for  trespass  de  honis  of  deputy,  after  juelgment  against  lat- 
ter, no  action  against  former,  51,  ^'. 
Slander,  no  joint  action  for,  S5.  ^-. 

marriage  of  female  plaintiff  pcneling  action  for,  husbanel 
should  be  made  party,  6o,  i''. 

to  wife,  distinction  between  worJs  actionable,  per  se,  and 
those  not,  G5,  -^ 

of  wife,  Avhen  husbanel  may  sue  alone,  Co,  ^^. 

to  wife,  when  she  may  sue' for,  65,  '**. 

to  Inisband  and  wife,  two  actienis,  65,  -". 
Sidewalk,  bill  to  restrain  collection  of  assessment  for  neces- 
sary parties,  28,  -^. 


502  INDEX. 

Signed,  Inll  not,  general  appearance  is  waiver  of  objection  tliat, 

§  10,  «. 
Sole  corporation.    See  Corpoeatiox  Sole, 
Sovereign,  foreign.    See  Fokeigx  Soveeeigx. 

may  sue,  in  either  State  or  federal  courts,  29,  i. 
Sovereign  authority,  mandamus   should   be   maintained  in 

name  of,  30,  ^. 
Sovereignty,  defense  of,  when  cannot  be  set  up  in  land  suit,  40,  ♦'. 
Special  property,  in  subject-matter  of  agency,  Avhen  agent  has, 

he  may  sue,  8i,  -^  et  seq. 
Specific  performance,  of  contract,  when  jjerson  cannot  enforce, 
9,  *». 
of  contract  for  sale  of  lands,  by  administrator  of  vendor, 

necessary  parties,  26,  ^",  et  seq. 
of  contract  for  sale  of  lauds  against  heirs  of  vendor,  neces- 
sary parties,  26,  ^^,  et  seq. 
of  contract  to  convey  lands  of  wife,  when  will  not  be  en- 
forced, 69,  ^'K 
of  contract  for  sale  of  lands,  necessary  parties  to  suit,  26,  *>. 
of  verbal  assignment  of  contract  to  convey  lands,  36,  i'. 
suit  by  assignee  of  part  interest  in  bond,  when  no  bar  to 

suit  by  assignee  (same  person)  of  whole  interest,  36.  '^. 
plaintiff  dies  pending  action  for,  who  shonld  revive,  78,  -*». 
Standing  in  court,  defendant  has,  how  long,  8,  ^*. 
State,  alien  resident  of  is  entitled  to  benefit  of  its  insolvent 
laws,  55,  1. 
not  bound  by  appearance  and  plea  of  officer  of,  40,  ^*. 
corporation  is  citizen  of  creating,  90,  ^. 
courts,  foreign  sovereign  may  sue  either  in  federal  or,  29,  ^ 
court,  contract  both  parties  'to  aliens,  may  be  enforced  in, 

29,  ]a._ 
court,  alien  sued  in,  mav  remove  action  to  federal  court, 

29,  ■^^. 
Avhen  federal  court  will  not  enjoin  officer  from  canceling 

license  of  foreign  corporation  to  do  business  in,  47,  i-*. 
cannot  pass  a  law  making  general  government  suable  in  its 

courts,  40,  1,  et  seq. 
generally  sues  in  own  name,  39,  ». 
name  of,  when  will  not  be  permitted  to  be  used  in  an 

action,  39,  ^. 
name  of,  attorney-general  may  use  to  pursue  any  remedy, 

name  of,  attorney-genei-al  cannot  use,  to  pursue  misappro- 
priated funds  of  countv,  48.  •*. 

bond  in  name  of,  action  usuallv  in  its  name,  but,  39,  ^3. 

suit  in  name  of,  upon  official  bond,  39,  '",  et  seq. 

name  of,  action  in  nature  of  quo  icaiTanto,  to  test  validity 
of  election,  39,  ». 


IM)EX.  503 

state  —  Cont'mued. 

of  Nevada,  suit  for  school  taxes,  ^  39,  J^. 

may  maintaiu   action  against  officer,  •who  refuses   to   pay 

over  fees  CDllected,  39,  ^^. 
proceeding  in  federal  court  against  executive  officers  of,  in 

effect  against,  40,  i3, 
when  is  nominal  party  in  suit  on  official  bond,  39,  ^i. 
not  proper  piarty  to  suit  for  injunction,  28,  -''. 
when  either,  or  private  person  may  sue  for  penalty  imposed 

by  statute  for  breach  of  duty,  38,  *. 
power  over  property  of  non-residents,  12,  -. 
when  proceedings  of  will  fail,  39,  *^, 
may  sue  in  own  courts,  39.  ^,  et  ^eq. 
civil  action  prosecuted  by  in  what  manner,  39,  -. 
sister,  how  may  sue,  39,  '*. 

cannot  be  sued' without  its  own  consent,  40,  ",  et  seq. 
must  be  sued  in  the  courts,  and  in  the  manner  provided  by 

law,  when  no  remedy.  40,  ^^,  et  seq. 
cannot  be  sued  indirectly,  by  means  of  proceedings  against 

its  agents,  etc.,  40,  ^'^. 
right  to  sue  the,  is  matter  of  favor  to  be  construed  strictlv, 

40,  ^ 
university,  not  a  corporation,  cannot  be  sued,  40,  ^^. 
Statute,  in  relation  to  abatement  of  actions,  is  in  nature  of 

special  statute  of  limitations,  105,  ^^,  et  seq. 
to  prevent  abatement  of  actions,  meaning  of  words,  "after 

issue  joined,"  105,  ^. 
to  prevent  abatement  of  actions,  construction  of  (Md.), 

107.  a-, 
construction  of,  service  of  process  upon  foreign  corpora- 
tion, 91,  '. 
comptroller  of  currency  cannot  submit  rights  of  U.  S.  to 

litigation  without.  40,  -. 
contract  under  seal,  not  negotiable  unless  made  so  by,  35, 

-',  et  seq. 
joint  and  several  contract,  who  made  defendants  under, 

97,  1^,  et  seq. 
when  corporation  may  exist  under  either  of  two,  presump- 
tion as  to  name.  90.'**. 
county  derives  remedy  by  suit  from,  41,  ^. 
county  must  be  sued  in  manner  provided  by,  42,  ^ 
who  joint  defendants  within  the  meaning  of,  97.  ^'-. 
misjoinder  of  defendant's  action  upon  contract,  plaintiff 

may  amend.  103,  ^. 
imposes  duty  but  no  remedy,  law  will  raise  one,  9.  i". 
imposes  duty  and  provides  particular  remedy,  9,  ^^'. 
unless  authorized  by.  no  action  lies  against  city  for  neglect 

to  perform  public  duty,  44,  ^,  et  seq. 


504  INDEX. 

Statute  —  Continued. 

of  Maine,  all  actions  for  trespass  on  case,  survive,  ^5  107,  ^'^. 

in  action  upon  note,  wlio  made  defendants,  97,  '^  tt  t^eq. 

meaning  of  absentee,  29,  21. 

meaning  of  term  "party."  1,  ^. 

providing  method  for  reacliing  property  must  be  strictly 
followed,  12,  6. 

as  to  service  of  process  on  infant  defendant  strictlv  followed, 
58,  «. 

survival  of  actions  for  torts,  construed  strictly,  107,  '^^. 

rule  as  to  parties  to  suit  upon  bond  of  countv  treasurer 
(Nebraska),  50,  '. 

in  absence  of,  parish  treasurer  cannot  represent  the  corpo- 
ration in  court,  50,  *». 

town  must  sue  in  manner  provided  by,  44,  ^  et  seg. 

town  under,  may  sue  for  price  of  right  to  fish  in  its 
streams,  45,  ^^. 

town  may  sue  rioters  under,  for  destruction  of  loropertv, 

45,  1^. 

independent  of,  town  not  liable  for  non-repair  of  highways 

and  bridges,  46,  ^,  ei  seq. 
relating  to  power  ol  wife  to  sue,  construed  how,  68,  ^^. 
wife  may  recover  for  injuries  to  person  or  character  as 

though  sole,  65,  '". 
separate  business  of  wife,  husband  not  liable  for  her  debts, 

68,  ^■^. 
Statutory,  penalty.    See  Penalty. 

assessment,  action  lies  against  town  upon  judgment  even, 

46,  a. 

penalty  for  usury,  separate  action  upon  contract.  95,  ^. 
provision,  name  in  which  county  shall  be  sued  must  be 

strictly  followed.  42,  *. 
proceedings  for  sale  of  lands  of  wife  she  should  be  made 

defendant,  69,  •'. 
remedy  of  surety,  contribution   for  amount  paid  cumu- 
lative, 86.  a. 
rig' it  of  action,  extent  of  limitation  of  time  to  sue,  8,  21, 
Stipulation,   of  attorney  not  sufficient  to  bring  infant  into 

court,  15,  '^. 
eftect  as  to  time  when  person  made  party,  7,  '^o, 
tort,  action  that  dies  with  person  may  survive  bv,  lOS,  ^. 
Stock,  money  advanced  for,  must  be  demanded  of  corporation 

before  suit  to  recover  back,  93,  &. 
of  corporation,  suit  by  stockholder  to  recover,  necessary 

party,  25,  ^o. 
corporation    not    liable    to    stranger    for    conversion   of, 

93,  •». 
suit  to  enforce  payment  for,  defense,  93,  '=*. 


UTDElf. 


505 


Stock —  Co'ntinned. 

subscription  to  capital  of  corporation,  liabilitv  of  stock- 
holder, ^  93.  ^K 

trespassing.     See  Cattle. 

trespassing,  wlien  jo;nt  action  for  injury  by,  proper,  98,  ^. 
Stockholders,  suits  by  and  against,  93. 

of  eur]^oration  proper  persons  to  direct  filing  of  petition 
to  have  latter  declared  bankrupt,  54,  *. 

right  to  inspect  books  of  corporation,  how  enforced,  93,  ^. 

person  to  sue  for  conversion  of  stock  must  be  a,  93,  ■*. 

liability  of,  bill  to  enforce  for  debts  of  corporation,  neces- 
sary parties,  25,  "■'",  et  seq. 

suit  by,  against  directors  of  coi-poration  for  waste,  etc., 
necessary  parties,  25,  ^'^ 

may  be  made  defendants  to  creditor's  bill  against  corpora- 
tion, 93,  '1. 

cannot  defend  action  against  corporation.  91,  ^. 

when  may  be  permitted  to  defend  suit  against  directors  of 
corporation.  93,  '". 

when  mav  defend  foreclosure  suit  against  defunct  corpora- 
tion, 93,  «. 

necessary  parties  to  suit  to  dissolve  and  wind  up  corpora- 
tion, 25.''-''. 

of  corporation  single  (N.  Y.),  may  sue  to  dissolve,  55,  ^. 

Avhen  action  to  i-ecover  share  of  dividends  must  be  against 
corporation,  91,  ^*. 

suit  for  self  and  all  others,  new  parties,  amendment  of 
pleadings,  3,  -'. 

numerous,  Avhen  need  not  be  parties,  25,  '^. 

when  a  single  one  may  restrain  coi-porate  acts,  93,  ^. 

may  enforce  publication  of  "statement  and  report"  of 
corporation,  93,  **. 

suit  by,  against  corporation  to  recover  shares  of  stock, 
necessary  party,  25,  '^^. 

allowed  to"l)e  substituted  as  party  for  corporation  in  pend- 
ing suit,  106,  '3. 

wlien  pending  suit  by  corporation  may  be  amended  by  sub- 
stituting, as  partie's  plaintiff,  90,  '-.' 

when  mav  sue  agent  ot  corporation  for  wasting  propertv, 
93,  >,  etxeq. 

when  may  n.ot  compel  interpleader,  114,  ■. 
Stranger,  administrator  not  liable-  to,  lor  money  collected  on 
judgment  in  name  of  decedent.  75. 

bailee  of  shtep,  may  sue  in  n  T)levin  for  possession,  87,  ^'. 

to  contract,  wlien  no  relief  for  fraud  of,  9.  '^. 

when  may  i  ot  sue  upon  contract  under  seal  made  for  his 
benefit .  37    ',  rl  serf. 

cannot  sue  corporation  for  conversion  of  stock,  93,  *. 

Parties  -  43 


506  INDEX. 

Stranger  —  Continued. 

after  final  judgment  too  late  to  insist  on  being  made  party 

to  the  action,  ^  101,  !». 
when  landlord  liable  to,  for  non-repair  of  leased  premises, 

80,  ',  ^. 
may  make  no  motion  in  an  action  except,  8,  '^. 
paying  mortgage,  when  may  not  be  substituted  in  place  of 

mortgagee,  34,  ^^. 
when  motion  to  strike  out  name  of,  as  plaintiff,  proper, 

102,  1'. 
misjoinder  of  plaintiffs,   motion   to   strike  out  name  of, 

102,1*. 
to  action,  rights  of  will  not  be  settled  by  decree,  7,  ',  et  kpq. 
sale  of  property  of,  under  execution  sheriff  liable  individ- 
ually not  on  bond,  51,  ^^. 
when  tenant  liable  to,  for  injuries  received  from  non-repair 

of  leased  j)remises,  80,  *,  ^. 
one  tenant  in  common  may  sue  alone  as  against,  82,  ^. 
when  cestui  may  sue  for  possession  of  trust  funds,  32,  i'. 
action  by,  against  trustee  to  defeat  the  trust,  when  cestui 

que  not  necessary  party,  23,  ^. 
substituted  as  party  by  consent,  evidence  in  suit,  106.  '^''. 
Street,  city  wrongfully  takes  property  for  use  of,  ejectment, 

44,  1'. 
when  city  may  not  recover  from  private  person  share  of 

cost  of  wall  made  in  opening,  43,  *. 
liability  of  city  to  repair,  change  grade  of,  etc.,  44,  ^,  et  seq. 
distinction  between  liability  for  non-repair  of,  of  officers 

of  incorporated  village  and  town,  4G,  ^'^. 
change  of  grade,  damages  to  abutting  lot  owner,  liability 

of  town.  4G,  15. 
liability  of  village  to  owner  of  lot  adjoining,  for  change  of 

grade  of  (Ohio),  46,  ^K 
lien  of  assessment  on  lot  for  improvement  of,  in  S.  F., 

who  may  enforce,  34,  ^^. 
town  may  sue  for  obstruction  of  public,  45,  i^. 
town  not  liable  independent  of  statute  for  failure  to  repair, 

46,  ^,  et  seq. 
town  not  liable  for  failure  to  prove  drain  under,  for  surface 

Avater,  46,  i''. 
when  village  liable  for  unlawful  acts  of  its  trustees  in 

opening,  46,  i^. 

See  Parties;  Indispensable  Parties:  Necessary  Par- 
ties. 
Subject-matter,  of  suit  in  equity,  all  persons  having  interest 

in  should  be  made  parties,  18,  ^,  (^t  i^eq. 
of  action,  if  interest  in  common  to  many  jiersons,  when 

one  may  sue,  30,  *,  et  seq. 


I>'DEX.  5U7 

Subject-matter—  Continued. 

of  action,  one  oi  class  interested  in  cannot  sue  for  own 

individual  benefit,  ^  30,  ^  et  seq. 
ot  action,  it  interest  in  be  joint  all  should  unite,  TO.  +. 
Subrogation,  extent  to  whicli  land  sold  by  executor  will  be  in 
iavor  of  purchaser.  73. 
■uiien  purchaser  of  lands  from  executor  will  be  to  rights  of 
creditors,  73. 
Subscription,  when  corporation  may  sue  iipon,  90,  '^. 

to  capital  stock  of  corporation,  liability  of  stockholder,  93, 

J^  el  heg. 
due  unincorporated  association,  when  trustee  mav  sue  for, 
92   :<. 

Substitution,  action  does  not  abate  by  expiration  of  term  of 

oftiee  of  plaintiff,  47.  'K 
appellant  becomes  bankrupt  after  appeal  perfected,  proper, 

108.  1". 
appearance  not  intervention  but,  109,  ^. 
of   assignee    as    party  administrator    must    have    notice, 

106,  a, 
of  assignee  of  bankrupt  partner  in  suit  against  co-partner 

for  dissolution  proper,  oi.  6. 
assignee  of  purchaser  at  sheriffs  sale  for  original  plaintiff 

not  proper,  106,  i'. 
associates  become  corporation  after  suit  brought,  none, 

106,  i«. 
action   against   bailee    principal    may   be    substituted    as 

defendant.  106,  i«. 
death  of  plaintiff,  administrator  proper,  106.  -. 
death  of  woman  plaintift  leaving  minor  child  proper,  106, ". 
on  death  of  sole  plaintiff  or  defendant  in  pending  action, 

who  may  be  substituted,  105,  22. 
death  of  receiver  pending  suit,  what  proper,  52,  i**. 
of  administrator  of  defendant,  who  mav  make  motion, 

106,  ^1. 
■when  executor  of  joint  defendant  in  pending  action  im- 
proper, 106,  ■'^•^. 
of  defendants  in  action  against  officer  to  recover  attached 

property,  when  made,  106.  ■■^". 
when  too  late  to  obtain  order  vacating  order,  tort,  106,  ^o. 
when  too  late  for  defendant  to  object.  106,  ^'*. 
bv  striking  oitt  name  of  sole  partv  and  inserting  new  partv 

'not  allowed,  106,  ^'^. 
notice  of  rights  of  party,  lOG,  ^,  et  seq. 
of  party  to  pending  suit.  Code,  106,  *'. 

of  partie:?  plaintiff,  transfer  of  interest  7>e7?f/en^^  lite,  3i,  ^, 
appeal  imiame  of  partnership,  extent  of,  106,  '^*^. 
must  be  made  in  manner  pointed  out  in  the  statute,  108,  ^. 


508  INDEX. 

Substitution—  Continued. 

of  stranger  as  party  in  plact,  of  representative,  bv  consent, 

effect,  -j  106,  ^'. 
of  stoclcliolder  for  corporation  as  plaintiff  in  pending  suit, 

106,  ^\ 
same  rule  in  supreme  as  in  circuit  courts,  108,  '^. 
suit  by  surety  to  enforce  right  of  to  sureties,  party,  24,  '^. 
Successor,  action  by  probate  judge  upou  bond,  resignation  of, 
who  continues,  49,  ^,  et  i>eq. 
bond  to  public  officer  and.  "who  may  sue,  47,  5. 
action  prosecuted  by  public  ofticer,  on  death  of  or  removal 

from  office  continued  b\',  107,  ^'. 
public  officer  must  pay  over  money  received   in   official 

capacity  to,  47,  ^,  et  seq. 
of  receiveV  dying  pending  suit,  substitution  of,  proper,  52,  i". 
bond  given  to  A.  B.,  treasurer,  and  to  his,  who  mav  sue, 
50,  1. 
Suggested,  bankruptcy  of  plaintiff,  assignee  should  be  substi- 
tuted, 53,  1',  et  seq. 
death  of  party,  when,  106,  ^ 

death,  proper  time  for  proof  of  death  of  party,  108.  «. 
death  of  party,  opposite  party  entitled  to  notice,  105,  ^. 
Suit.     See  Action. 

Superintendents  of  poor,  in  what  name  may  sue,  90,  «. 
Supsrvisors  of  town,  name  of  office,  meaning  of  term,  45,  2. 
Supplemental,  bill,  assignee  of  defendant  made  partv  to  suit 
by,  11,  '. 
pleading,  cannot  deprive  party  of  rights  of,  bar  of  statute 
of  limitations,  etc.,  8,  -". 
Supplies,  family,  husband  and  wife  jointlv  and  severally  liable 
(Iowa),  68,  J^,  etseq. 
plantation,  when  wife's  estate  liable  for,  OS,  >«. 
Supreme  court,  objection  for  defect  of  parties  not  made  for 
first  time  in,  unless,  103,  ^*,  et  .'^eq. 
want  of  parties  to  bill,  made  for  first  time  in,  effect.  102,  '"^K 
Surety,  principal  and,  suits  by  and  against  generally,  86. 

proper  parties  to  suit  to  open  settlement  of  adiuinistrator, 

86,  ^'. 
on  bond,  when  become  quaai  parties  to  suit,  1,  ^e. 
Avhen  all  may  be  joined  in  suit  upon  several  separate  bonds, 

when  action  will  lie  upon  survivors,  upon  joint  bond,  86,  ^5. 
necessary  parties  to  bill  of,  to  sibject  land  to  payment  of 

bond  for  price  of  paid  by,  26,  ^^. 
on  bond  of  administrator, 'proper  parties  to  suit  to  recover 

legacy,  22,  ^•^,  et  seq. 
on  administrator's  bond,  not  liable  for  claim  barred  by 

statute,  86,  ^e. 


rsDEX.  509 

Surety —  Continued. 

suit  on  boud  of  cashier,  death  of  insolvent,  suit  proceeds 
against,  ^  55,  ^^. 

in  suit  upon  executor's  bond,  non-joinder  of  representative 
of,  against  surviving  principal,  101,  •». 

on  forthcoming  bond,  not  released  by  discharge  of  principal 
in  bankruptcy,  iiio,  -i;  et  seq. 

on  forthcoming  bond,  not  released  bv  insolvency  of  prin- 
cipal, 86.  ■^^. 

when  not  liable  jointly  on  official  bond,  86,  ^^. 

on  official  bond,  exten't  of  liability.  86,  ^'*,  et  seq. 

released  upon  disaffirmance  of  contract  by  infant,  59,  ^. 

in  equitv.  when  mav  sue  all  persons  liable  on  joint  con- 
tract, 74. 

statutory  remedy  of,  for  contribution  cumulative,  86,  ^. 

right  to 'contribution  from  co-surety,  86.  '^. 

when  may  bring  joint  action  for  contribution,  86,  ^. 

when  may  sue  personal  representative  of  deceased  co-surety 
for  contribution,  85. 

bill  t )  enforce  contribution,  proper  parties  to,  24.  ". 

paying  debt  of  principal,  when  rday  sue  jointly,  when  bring 
several  action,  86,  ^  et  seq. 

when  creditor  will  be  enjoined  from  collecting  debt  from, 
86,  ^ 

when  may  bring  bill  to  subject  lands  to  pavment  of  debt, 
86.  '. 

lands  of,  bill  to  subject  to  payment  of  debts  of  principal, 
necessary  parties,  26,  ^''. 

death  of  one,  on  joint  obligation,  effect,  86.  ^^,  et  seq. 

of  deceased  administrator,  devastavit  suit  against,  represen- 
tative should  be  party.  22,  '^. 

and  representative  of  administrator  cannot  be  parties  to 
acti(»n  for  devastavit  of  former  administrator,  75. 

of  administrator,  distribution  suit  for  all  if  some  dead, 
representatives  proper  parties,  •/.2.  ■*^. 

of  executor  not  liable  until  after  default  of  latter,  86,  -**. 

when  executor  of  dectased  may  not  be  substituted  as  de- 
fendant. 107.  16. 

on  bond,  may  sue  co-surety  for  exoneration,  although  insol- 
vent. 55,  '.' 

bill  bv.  tj  enforce  his  exoneration  who  joined  as  plaintiflfs, 
24,''^. 

of  guardian,  when  bill  for  an  account  will  lie  against  alone, 
86.  a". 

of  guardian,  need  not  be  joined  in  action  by  infant  upon 
bond.  57.  ^-. 

proper  partv  to  bill  for  an  account  bv  infant  against  guar- 
dian, 21,  i"^. 


510  IXDEX. 

Surety —  Continued. 

of  guardian,  joint  action  against  witli  principal  will  lie  for 

an  account,  ^  86.  ^^ 
of  guardian,  not  liable  for  note  given  for  board  of  ward, 

8li,  ^^. 
In  proceeding  by,  to  have  judgment  assigned  to  after  pay- 
ment, principal  must  have  notice,  86,  i^. 
on  injunction,  when  are  considered  as  parties  to  suit,  86,  ^i. 
relief  asked  against  principal  properly  joined,  24.  ^". 
of  defendant  in  replevin,  when  may  intervene,  86,  '^'^. 
when  may  be  sued  alone,  without  joining  principal,  86,  i^. 
suit  against,   when    not    entitled  to    have    the    principal 

brought  in,  86,  n.  i'-^. 
rights  of,  when  sued  alone,  83,  ^^  et  seq. 
suit  to  enforce  right  of  substitution  to  securities,  neces- 
sary party,  24,  '^. 
action   against,  to  co-surety  to  establish  trust,  who  not 

necessary  party  to,  23,  ^*. 
siiit  against  principal,  when   trustee  of  latter  necessarv 
party,  23,  ^i. 
Surplusage,  additions  to  name  of  plaintiff,  what  is,  4,  ^,  et  seq. 
fact  that  action  at  law  prosecuted  for  use  of  third  person, 
2,*. 
Surface  water,  owner  of  land  may  not  concentrate,  etc.,  38,  ^^. 
Survival,  of  action,  see  Abatement. 
of  action  for  conversion,  76. 
of  action  for  failing  to  file  report  by  trustee  of  corporation, 

107,  ^«. 
death  of  one  of  several  defendants  in  action  for  accounting 

does  not  abate,  105,  <>. 
of  action  for  damages  caused  by  dog,  death  of  plaintiff, 

107,  ai. 
of  actions  for  deceit,  divesting  water  course,  etc.,  die  with 

person,  107,  '^*^,  et  seq. 
judc!:m 'ut  recovered  by  husband  and  wife,  survives  to  wife, 

107,  ^». 
of  action  for  bodily   injurv  caused  by  act  or  default  of 

defendant,  death  of  plaintiff,  107,  =*^. 
action  for  breach  of  promise  of  marriage  on  death  of  de- 
fendant abates,  107,  ^. 
of  action  for  nuisance,  76. 
of  actions,  as  a  rule  personal  actions  die  with  the  person, 

107,  ^«. 
of  action  of  replevin,  107,  27. 
of  action,  for  default  of  sheriff,  76. 

of  action  for  misfeasance  of  sheriff  or  deputy  none,  51,  '^*. 
of  action,  tort,  effect  of  deatli  of  sheriff,  pending  action 
against  for  default  of  deputv,  76. 


I>-DEX.  511 

Survival—  Continued. 

of  action,  statute  (3Ie.),  all  actions  for  trespass  and.  case, 
§  107.  33. 

action  for  tort  against  personal  representatives  of  deceased 
Avron<]^-doer,  7G. 

of  action  of  tort  that  dies  "with  the  person  bv  stipulation, 
108,  3, 

of  actions  for  torts,  statutes  proAdding  for,  construed 
strictly,  107,  ^a. 

cause  would  survive  to  -o-ife,  she  must  be  jomed.  63,  3. 

on  death  of  one  joint  administrator  or  executor  trust  sur- 
vives to.  71,  ^3. 

next  of  kin  may  proceed  against  representative  of  deceased 
joint  administrator,  although  there  is,  77. 

npon  death  of  one  of  two  joint  administrators  pending 
suit  action  may  proceed  ag^iinst,  75,  -3. 

in  suit  against  upon  executor's  bond,  non-joinder  of  repre- 
sentative of  deceased  principal,  101.  6. 

action  for  destruction  of  chattel,  death  of  co-defendant, 
proceeds  against,  or  executor,  98.  '. 

of  joint  contract,   when  may  sue.  94,  ^, 

action  lies  against,  on  deatli  of  co-contractor,  74. 

•Rhen  action   brought  against,   upon    joint    contract,   97, 

of  joint  contract  proper  defendant,  on  his  death  his  exe- 
cutor, 107,  ^K  el  seq. 

in  actions  upon  a  joint  and  several  contract  personal  repre- 
sentatives of  decedent  never  joined  Avith  at  law.  71. 

personal  representative  of  decedent  never  joined  with  at 
law.  72,  i«,  71. 

remedies  on  judgment  exhausted  before  action  against 
estate.  9.  •*=•. 

in  eeiuity  all  persons  liable  upon  a  joint  contract  may  be 
sued,  71. 

judgment  against  several,  death  of  one,  writ  of  error  prose- 
cuted by,  108,  ie. 

of  joint  vendor  of  land,  suit  by  to  enforce  lien  for  purchase 
price,  necessary  parties.  27, ''^. 

of  je)int  payees  of  note,  may  sue  thereon,  72.  i^. 

on  his  death  his  executor  inay  sue.  72,  i",  88,  '^. 

of  joint  plaintifis,  continues  to  prosecute  suit,  107,  •>. 

ot  joint  plaintifis  in  action,  trespass  guare  clnusuui  /regit, 
prosecutes,  107,  **,  et  s^eq. 

death  of  one  of  two  or  more  plaintiffs  within  a  year  after 
judgment,  execution  issued  for  or  against.  105, "'. 

death  of  joint  elefendant,  executor  or  partner,  suit  proceeds 
ag  linst.  107,  ^,  et  seq. 

of  i)artnership,  may  sue  npon  claims  of,  88,  ^,  et  seq. 


512  INDEX 

Survival  —  Continued. 

of  partnership,  executor  of  deceased  partner  not  joined 

with,  in  action  on  firm  claim,  g  88,  '^^,  et  seq. 
on  death  of  co-partner  not  liable  for  balance  due  estate  of 

decedent,  until  partnership  afiairs  settled,  72,  '^*'. 
partner,  when  cannot  recover  firm  property  from  executor 

of  decedent,  74. 
partner,  never  joined  as  defendant,  with  representative  of 

decedent,  in  action  at  law  against  partnership,  74. 
partner,  when  mav  be  joined  as  defendant  with  executor  of 

decedent,  74,  89,  ^2. 
partner    (La.)   joinder  of  representative  of  decedent  in 

action  to  recover  money,  25,  ^ 
partner,  suit  by  to  declare  trust,  proper  party,  25,  ^. 
when  joint  action  will  lie  against,  even  though  they  are  the 

sureties,  86,  i». 
of  joint  trustees  may  sue,  32,  ^". 

of  joint  trustee,  suit  by,  heir  of  deceased  trustee  not  neces- 
sary party,  23,  **. 
joint  trustees  and  representative  of  deceased    joined   as 

_  parties,  when,  33,  ^. 
right  of  action  for  use  and  occupation  of  joint  estate  is  in, 

82,  ;io. 
Syndic.    See  Assignee. 
Tax,  when  city  may  recover,  43,  ^. 

illegal,  when  city  may  not  recover  back  money  paid  upon, 

46,  ^. 
municipal  corporation,  when  cannot  maintain  bill  to  re- 
strain collection  of,  43,  «. 
to  pay  bonds,  bill  to  restrain  collection  of,  bondholders 

numerous,  necessary  parties,  28,  -'. 
illegal,  suit  to  restrain  collection  of  upon  homestead,  who 

sue,  66,  •'^. 
who  may  intervene  in  action  to  enforce,  110,  -^. 
land  sold  fur,  when  county  not  liable  for  njpney  paid  for 

redemption  of,  4,  «. 
injunction  to  prevent  collection  of,  for  payment  of  interest 

on  bond  of  school  district,  necessary  parties,  28,  ^*. 
bill  to  restrain  collection  of,  owner  of  "school  lands,  county 

proper  party,  28,  '■^^. 
for  scliool  purposes  illegal,  remedy,  for  money  collected, 

46,  22,  et  seq. 
State  auditor  may  enjoin  treasurer  of  State  and  county 
^         from  receiving  script  in  payment  of,  50,  ^. 
Tax  collector,  county  treasurer  may  sue  for  failui-e  to  pav  over 

money,  50,  2. 
treasurer  may  not  retain  special  counsel    to    prosecute, 

50,  ^  ^  ^ 


INDEX.  513 

lax  deed,  to  laud  of  intestate,  who  mav  restrain  issuance  of, 

§  78,  ■^. 
person  authorized  by  law  to  execute,  necessary  jiarty  to 

suit  to  restrain  execution  of,  28,  ^'. 
when  obligors  on  contract  for  sale  of  land  may  sue  to  set 

aside,  96,  i'. 
Tax  sale,  of  lands  of  intestate,  who  may  sue  to  set  aside,  78,  '^. 
of    lands,   what  is   sufficient  to  support  action    for  fees. 

50,  ^. 
void,  countv  liable  to  holder  of  certificate  for  amount  paid, 

42.  ^. 
Tax  payer,  when  may  sue  for  self  and  all  others,  etc.,  to  test 

validity  of  law  to  raise  public  money,  30,  s,  et  seg. 
when  may  not  sue  for  self  and  all  others  to  restrain  collec- 

tiorfof' delinquent  school  tax,  30,  ". 
when  may  not  compel  interpleader,  114,  ^^. 
when  mav  unite  in  suit  to  set  aside  contract  of  district 

board,  %,  ^^. 
can  bring  bill  to  enjoin  collection  of  tax  levied  on  property 

within  municipal  corporation,  43.  ^. 
Team,  who  liable  for  incompetence  of  driver  of,  83,  ^-,  et  seq. 
Tenant,  abandoning  crop,  when  landlord  may  file  bill  of  inter' 

pleader  against  attaching  creditors  of,  79,  ' . 
sole,  death  of,  in  writ  or  right  action  abates,  107,  -i^. 
when  may  maintain  action  for  injury  to  leased  premises, 

79,  8,  «. 
when  landlord  must  join  as  co-plaintiff  in  action  to  sup- 
press nuisance,  79,  ^'^. 
suit  against,  to  recover  possession  of  leased  premises,  when 

heir  of  landlord  may  continue,  79,  i". 
when  mav  bring  bill' of  interpleader  to  settle  claims  fcr 

rent,  79,  ^",  114,  ^K 
when  liable  to  purchaser  at  execution  sale  for  rent,  80,  -^. 
liable  for  rent  although  he  never  entered  demised  premises, 

79,  i«. 

and  liis  surety  may  be  sued  in  same  action  for  rent,  80.  ^^. 
when  landlord  liable  to,  for  non-repair  of  leased  permises, 

80,  ^  ^  6. 

when  liable  for  negligent  use  or  non-repair  of  leased  prem- 
ises, 80,  *,  5. 

when  cannot  recover  for  repairs  from  co-tenant,  8"2,  -^. 

of  particular  estate,  when  remainder  man  may  sue  to 
remove  cloud  from  title,  79,  ^^  ^^. 

may  maintain  action  for  tresjiass  upon  crop,  79,  ■*. 

Avhen  liable  jointly  for  trespassing  stock,  ^0,  -'. 

right  of  action  for\ise  and  occupation  is  in  surviving.  82,  ■•■^. 
Tenant  in  common,  when  may  recover  contribution  from 
co-tenant,  82,  ^". 


511  INDEX. 

Tenant  in  Common  —  Continaed. 

when  must  sue  separately  for  damages  for  breach  of  cove- 
nant that  runs  with  the  land,  g  82,  *. 
of  lands,  when  become  corporation  for  purposes  of  sale  of, 

latter  must  sue  fur  trespasses  upon,  9o.  i>. 
must  all  join  as  plaintiffs  in  ejectment,  82,  'j,  i^, 
when  may  bring  ejectment,  against  co-tenant,  82,  ^^. 
when  one  tenant  may  recover  for  standing  grass  sold,  from 

common  properly,'  82,  ^e. 
husband  and  wife' may  join  with,  in  action  for  injury  to 

joint  property,  6G,  '^. 
when  may  not  bring  statutory  action  against  co-tenant  for 

an  injury  to  the  common  property,  82.  -'. 
when  administrator  of  deceased  and  survivor  may  unite  in 

action  for  damages  for  sale  of  lands  under  erroneous 

judgment,  73. 
when  administrator  of  deceased  mav  enjoin  tenant  from 

subletting,  73. 
persons  secured  by  one  mortgage,  when  debts  are  several, 

are,  82,  ^',  et  seq. 
of  mill,  cannot  join  in  action  for  breach  of  covenants  with 

reference  to  water,  82,  ^^ 
of  a  mill,  may  join  in  action  for  diversion  of  water  from, 

82,  i». 
right  of  action  for  partition,  82,  ^i,  otseq. 
when  sale  of  common  property  will  bo  ordered  in  suit  for 

partition,  82,  '•^^. 
generally  suits  relating  to  personalty,  81. 
when  mav  bring  action  for  mesne  profits,  against  co-tenant, 

82,  28. 

may  join  in  suit  to  quiet  title  to  common  estate,  82,  ^. 

real  actions,  how  may  sue,  82,  i,  et  seq. 

when  may  maintain  a  joint  action  for  rent,  82,  -'-. 

when  separate  action,  82,  -'-*. 

when  may  sue  co-tenant  to  determine  adverse  claim  of  title 

to  lands,  82,  «. 
all   should  join  iu  action  for  damages  for  destruction  of 

title  deeds,  82,  '. 
when  should  enforce  actions  for  torts  jointly,  81,  ^. 
generally  must  sue  jointly  when   tort    waived  and   suit 

brought  in  assumpsit,  81,*^,  et  seq. 
all  shouU  join  in  action  for  trespasses  upon  lands,  82,  **. 
may  sue  co-tenant  for  Avaste,  82,  ^'^. 
Term  of  office,  expiration  of  does  not  cause  abatement,  public 

officer,  47,  «. 
suits  l)y  town  treasurer,  do  not  abate  by  expiration  of,  50,  ». 
Time,  after  the  expiration  of,  limited  bv  statute  iu  relation  to 

abatement  of  actions,  no  scire  facias,  105,  ^^  et  seq. 


rs-DES.  515 

Time  —  Cont'mned. 

in  action  against  administrator,  begins  to  mn  wlien,  ^  75. 

to  plead,  general  appearance  does  not  waive,  IG.  **. 

extent  of,  during  wliich  common  carrier  liable  as  such  for 
goods,  87,  ^  et  seq. 

of  life  of  corporation  extended,  effect  on  suits  commenced 
during.  90,  -"-. 

death  of  defendant  pending  publication  of  summons,  effect, 
12,  '. 

"U-hen  commences  to  run,  for  infant  defendant  to  tile  dila- 
tory pleas,  58,  '^. 

"U'lien  objection  to  misnomer  of  defendant  made,  16,  ^^. 

for  tiling  bill  of  interpleader,  113,  ^',  114,  ». 

intervenor,  granted  proper,  109,  ^. 

intervenor,  standing  in  court,  111,  ^^. 

statute  of  limitations,  no  one  to  assert,  8,  '^'-. 

stav  of  proceedings,  does  not  extend  for  motion  of  revivor, 
105,  2". 

to  sue  upon  statutorv  right  of  action,  extent  of  limitation, 
8,  21,  et  i^eq. 

stipulation  etfect  as  to,  when  person  made  party,  7,  -'a. 

substitution  of  party,  notice,  106,  ^,  et  seq. 

for  issuance  of  summons,  reached  by  special  appearance, 

of  acquiring  title  to  trust  property,  receiver,   dates  from 

bond,  52,  *>. 
Title,  what  administrator  represents  in  action  of  ejectment,  73. 
adverse  claim  to,  see  Ad^'EKse  Claim  to  Title. 
adverse  claimant  of,  not  party  to  foreclosure  suit,  5.  ^,  27,  2". 
adverse  clamiant  of.  when  party  to  suit  to  enforce  vendor's 

lien  upon  land.  27,  ''. 
of  assignee  of  bankrupt  evidence  of,  53.  ■*. 
bond,  when  assignee  of  note  given  for  price  of  land  may 

foreclose,  35,  ■'^. 
bond  for,  suit  upon  when  assignor  necessary  party,  26.  ■*. 
certificates,  when  holders  of,  properly  joined  as  defendants 

in  suit  to  set  aside,  99,  •*. 
action  to  remove  cloud,  when  remainder  man  mav  sue  for, 

79.  i*,  1-. 
deeds,  who  may  sue  for  conversion  of,  72.  ''. 
deeds  of  land,  heir  must  join  in  action  for  their  destruc- 
tion, 18.  23. 
deeds,  all  tenants  in  common  should  join  in  action  for 

destruction  of.  82,  '. 
deed  lost,  plaintiff  may  maintain  ejectment,  although,  9,  ^". 
defendant  must  be  a  wrong-doer  at  time  action  of  ejectment 

is  brought  or  action  fails,  SO,  ».  et  seq. 
question  as  to  in  ejectment,  33,  ^'^. 


516  INDEX. 

Title  —  Continued. 

plaintiff  in  ejectment  must  show,  §  9,  ^'^,  et  seq. 

action  of  ejectment,  plaintitf  must  recover  on  own,  9,  '^'K 

superior  in  another  ejectment,  9,  ^**. 

after  acquired,  not  good  defense  to   action   of  ejectment, 
9,  3'. 

from  common  grantor,  ejectment,  neither  party  can  dis- 
pute. 9,  ^^ 

intervention  in  real  actions,  110,  ^^. 

to  land,  person  without  may  maintain  action  for  injury  to 
his  possession,  79,  ^. 

to  land  disputed,  must  bo  settled  at  law  before  partition, 
9,  ^^ 

to  note,  person  holding  should  sue,  35,  ',  et  seq. 

of  receiver,  to  property  of  the  trust  dates  from,  52,  ^. 

to  trust  property,  trustee  failing  to  comply  with  statutory 
requirements,"^  effect  as  to,  23,  ''^. 
Tort,  when  action  for  assault  and  battery  will  lie  against  the 
executor  of  the  wrong-doer,  7G. 

can  city  ratifiy  acts  of  agent  so  as  to  become  liable,  85,  ^. 

liability  of  city  for  acts  of  its  officers,  44,  ^^,  et  seq. 

generally  or  for  conversion  of  property  of  decedent  in  his 
lifetime,  administrator  must  sue,  78,  *. 

when  acts  of  infant  amount  to  conversion  of  bailed  prop- 
erty, 59,  **. 

of  agents  of  corporation,  when  latter  liable  for,  91.  ^s. 

defendants,  generally  who  made  parties  in  action  for.  98. 

mis  or  non-joinder  of  defendants,  no  objection,  103,  ^. 

non-joinder  of  defendants,  no  objection,  100,  -'. 

common  law,  death  of  defendant  in  trover,  action  abated, 
107,  ^•^. 

executor,  how  sued  for  his  psrsonal,  7fl. 

feasors,  wlien  plaintiff  may  treat  acts  of  as  joint  or  several, 
89,  'K 

of  husband,  wife  not  liable  f.ir,  70,  ^^  et  seq. 

injury  to  Avife,  two  actions  at  common  law,  65,  ",  et  s^eq. 

to  wife  general  rule,  husband  and,  join  in  action.  65,  ^ 

to  wife,  cannot  sue  husband  for  after  divorce,  65,  ^'^. 

of  wife  before  marriage,  joint  action  against  both,  70,  ^. 

liability  of  husband  for  those  of  wife,  70,  ^  et  seq. 

of  wife  during  coverture,  rule  as  to  liabilitv  of  husband 
modified,  70,  **. 

of  wife  in  absence  of  husband.  70,  3. 

fraud  changes  rule  of  liability  for  tort  of  wife,  70,  K 

liability  of  infant  for,  same  as  adult,  59,  ^,  et  seq. 

liability  of  insane  person  for,  62,  ^*, 

injury  to  estate  of  decedent,  who  may  sue,  72,  ^. 

injury  to  person  from  act  made  misdemeanor,  38,  2'. 


]t>-DEX.  517 

Tort  —  Continued. 

person  in  possession  of  property  may  sue  for  wrongful 

injury  to,  ^38,  ',  et  seq. 
injury  to  shei  p,  bailee  of  may  sue,  87,  i',  et  seq. 
wlien  several  persons  injured  by  same  tortious  act  may  suo 

wrong-doer  jointly,  f*5,  ". 
sale  of  whole  interest  in  chattel  ly  tenant  reversioner  may 

recover,  38,  '^. 
joint  action  for,  generally,  when  Avill  lie,  95.  ^.  et  y-rq. 
wiien  plamtiff  may  treat,  as  joint  or  several,  69,  ^■*.  et  seq. 
when  defendants  pioperly  joined  in  action  for,  98,  ^. 
defendants,  when  joint  action  against  not  proper.  98.  ^ 
joint,  in  ord'^r  to  be.  must  be  a  ••  onen*  ss  "  of  act,  98,  i^. 
joint  or  several  action  for,  proper,  98.  >*,  et  seq. 
selling  liquor  to  husband,  when  joint  action  proper,  98,  5, 
when  master  may  sue  for  loss  of  service,  83.  '"*. 
unlawful  use  of  force  by  servant,  when  botli  master  and 

servant  liable  for.  83,  ^^ 
malicious  prosecution,  corporation  liable  to  suit  for,  91,  -*•'. 
infant,  when  not  liable  for  malicious  suit  brouglit  by  next 

friend,  59,  ^'\ 
death  of  a  parson  caused  by  negligence  of  another,  gener- 
ally, 72,  ',  et  Feq. 
wrongful  taking  property  from  ofticer  after  levy,  right  of 

action  in  him,  30,  ■**'. 
when  firm  liable  for.  of  one  partner,  89,  ^ ',  et  seq. 
who  joined  as  plaintifi's  in  action  for.  ?o. 
at  law  same  psrson  cannot  be  both  idaintitf  and  defendant 

in  action  for,  6,  ^^. 
effect  of  misjoinder  of  plaintiffs  in  ac:ion  for.  102.  •*,  et  seq. 
non-joinder  of  plaintiffs  matter  ot  abatement  merely.  102,  ^". 
objection  for  non-joineter  of  plaintiffs,  how  taken  advantage 

of,  95.  ^  et  seq. 
in  action  for,  how  objection  made  to  non-joinder  of  plaint- 
iffs, IGO,  11,  etseq. 
generally  actions  for,  against  personal  representatives,  76. 
person  attempts  to  pursue  two  distinct  remedies  tor,  elect, 

9,  «. 
action  for  seduction  of  chilel,  when  parent  may  sue  for,  83,  ^. 
defense  to  action  for  seductirn  of  child,  ^3.  *'. 
enticing  away  servant  action  lies  for.  83,  *. 
negligent  acts  of  servants,  when  contractor  liable  for,  83,  i^. 
sheriff  may  site  for  gooels  attrfcheel  taken  from  possession 

of,  51,  «. 
sheriff  and  deputy  may  not  be  joineel  for  tort  of  latter 

alone,  51,  i^. 
survival  of  action  for  elefault  of  sheriff  or  deputy,  76. 
personal  actions  for,  as  a  rule  die  Avith  the  person,  107,  ^^. 

Parties  — 44 


518  ixuEX. 

T.QTt  —  Cont'mued. 

action  lor.  that  dies  with  person  mav  survive  by  stipula- 
tion, ^  lOS,  3. 

■when  actions  for,  survive  against  personal  representatives 
of  wrong-doer,  76. 

survival  of  actions  for,  statute  providing  for  construed 
strictly,  107,  ^s. 

Code,  rights  of  action  for,  tliat  would  survive  may  be 
assigned,  38,  ^S  et  seq. 

action  for,  not  founded  upon  contract  by  tenants  in  com- 
mon jointly,  81,  ^  ^. 

when  action  for  trespass  qimre  clausum  /regit  lies  against 
executor  of  wrong-doer,  7G. 

when  may  bo  waived  and  action  brought  in  assumpsit,  81,  '^. 

when  cannot  be  waived  and  suit  brought  in  assumpsit, 
81,^. 

one  who  has  repudiated  contract  for  fraud  mav  sue  wrong- 
doer, 38,  3, 

release  of  one  joint  wrong-doer,  effect,  98,  ". 
Tortious  acts  of  deputy  sheriff,  action  against  sheriff  need  not 

be  described  as  sheriff,  51,  •'^. 
Town,  bonds,  authorized  issuance  of  constitute  a  valid  demand 
against,  46,  "*. 

unauthorized  issuance  of  bonds,  money  received  by,  may 
be  recovered  back,  46,  ^. 

bond  given  to  State  to  use  of,  former  may  not  sue  in  own 
name,  45,  «. 

bond  for  support  of   bastard,   settlement  in   new   town, 
name  in  which  suit  brought,  45,  '. 

may  sue  upon  a  contract  made  to  an  agent  for  its  benefit, 

45,  ^^. 

divided  after  demand  created,  when  suit  to  recover  against 

each  separately,  46,  ^ 
not  liable  for  failure  to  provide  drain  for  surface  water 

under  street,  46,  ^^. 
may  sue  for  obstruction  of  highway,  45,  ". 
not  liable  independent  of  statute  for  non-repair  of  higli- 
_  ways  and  bridges,  46,  «,  et  seq. 
liability  for  damages  for  change  of  grade  of  street  to  owners 

of  lots  abutting,  46,  '^ 
distinction  between  liability  of  for  non-repair  of  streets, 

and  that  of  incorporated  village,  46,  ^-. 
not  liable  for  faulty  construction  of  town  house,  damages, 

46,  ''. 

statute,  may  sue  for  price  of  right  to  fish  in  its  streams, 

45,  ^•*. 
action  will  lie  against  upon  judgment,  46,  ». 
action  brought  in  name  of,  probably  proper,  45,  S  et  seq. 


INDEX.  519 

Town —  Continued. 

no  liability  to  physician  for  treatment  of  small-pox  patients, 
'i  46,  «. 

may  siie  officer  for  failing  to  pay  over  money  of,  to  his  suc- 
cessor, 45.  **. 

change  of  officers  pending  suit  by,  effect,  45,  ^. 

may  sue  rioters  for  destruction  of  property,  45,  ^''. 

liability  for  money  collected  for  school  fund,  4G,  -^,  et  scq. 

must  sue  in  manner  provided  by  statute,  45,  ^  (t  seq. 

how  sued,  in  what  capacity,  46, '^  et  seq. 

not  incorporated,  suit  against  trtistees,  46,  ^. 

supervisors  of,  name  of  office,  meaning  of  term.  45,  2, 

when  city  may  not  recover  back  money  paid  to,  under 
illegal  tax,  46,  *». 

must  be  party  to  bill  to  restrain  treasurer  of,  from  paying 
money  voted,  46,  ^^. 
Town  house,  town  not  liable  for  faulty  construction  of.  41,  '^ 
Township  trustees,  when  may  not  be  party  to  a  suit,  20,  **. 
Transfer,  sufficient  to  constitute  assignee,  real  partv  in  inter- 
est, Code,  34,  12,  et  seq. 
Transitory,  personal  actions  ai-e  at  common  law,  9,  ^'. 
Treasurer,  county  may  sue  tax  collector  for  failure  to  pay  over 
money,  50,  -. 

cannot  retain  special  counsel  to  prosecute  tax  collector  to 
recover  county  funds,  50,  *. 

county,  when  liable  to  suit  upon  bond,  50,  ^^,  et  seq. 

countv  may  sue  for  failure  to  pay  over  monev  collected, 
50,  \ 

bond  of,  suit  upon,  in  whose  name  prosecuted,  50,  '. 

parish,  unless  specially  authorized  by  statute  cannot  rep- 
resent it  in  action,  50,  •>. 

State  and  county,  State  auditor  may  enjoin  from  receiving 
script  in  payment  of  taxes,  50,  **. 
Treble  damages,  destruction  of  chattel,  death  of  co-defendant, 

actioi)  proceeds  against  survivor  or  executor,  9S,  '. 
Trees,  trover  for  conversion,  although  taken  in  another  State, 

38,  ^,  et  seq. 
Trespass,  joint  owners  of  chattel  unite  in  for  injury  to,  95.  ', 

upon  crop,  tenant  may  maintain  action  for  against  landlord 
or  succeeding  tenant,  79,  3,  5. 

de  bonis,  who  may  maintain  action  for,  38,  s. 

de  bonis  against  "deputy  sheriff,  anel  judgment  unsatisfied, 
no  action  against  sheriff,  51,  ^*. 

who  mav  maintain  for  propertv  of  the  estate  of  deceelent, 
42,  ^",'  ^^  XX. 

of  infant,  liability  same  as  aelult,  59,  ". 

upon  lands,  when  administrator  may  sue  for,  73. 

upon  lands,  when  administrator  may  sue  heir  for,  73. 


520  INDEX. 

Trespass  —  Continued. 

ii]joii  lands  when  corporation  may  sue  for,  §  90,  '•;  93,  ^. 

upon  lands,  when  heir  may  sue  tur,  73. 

upon  lands  ot  wife,  husband  and  wife  may  sue  for,  66,  ''\ 

lands  ot  mfant  guardian  in  socage  may  bring  in  own  name, 
57,  ^ 

upon  land,  title  in  trustee,  action  in  his  name,  32,  ^^. 

upon  lands  all  tenants  in  common  should  join  in  action 
tor,  82,  ^ 

but  one  may  sue  alone  as  against  a  stranger,  82,  ^. 

by  officer  attaching  lirm  property  for  debt  of  one  partner, 
when  firm  may  sue,  88,  *•'. 

qiiare  claunnrn  f regit,  tenant  in  common  cannot  sue  co- 
tenant  for.  82,  i^  1*. 

qnare  clausmn  /regit,  on  death  of  co-plaintiff  survivors 
prosecute,  107,  **,  et  seq. 

quare  da nsarn  f regit  did  not  abate  by  death  of  one  of  sev- 
eral co-defendants,  107,  ^*',  et  seq.,  i05,  ^. 

deputv  sheriff  directly  liable  for,  connected  under  color  of, 
51,  1''. 

or  trespass  on  the  case,  by  statute  (Me.)  survive,  107,  ^■^. 
Trespassar,  (ib  initio  when  attachin.i,'  officer  is.  81,  -". 

when  receiver  is,  may  be  sued  in  any  appropriate  form  of 
action.  52,  ^■•^. 
Trespassing  stock,  when  owners  liable  jointly  for,  80,  ^i. 
Trial,  at  law,  equity  will  not  lend  its  aid  to  a  party  after,  unless, 
9   IS 

effect  of-  before  service  in  intervention,  109,  ». 

iion-jointler  of  plaintiffs,  when  objection  made  at,  95,  ^. 

person  joined  as  plaintiff  without  his  knowledge  or  con- 
sent, objection  made  before,  9,  ',  et  seq. 

rights  of  party  must  continue  until,  9,  '^. 
Trover,  general  rule  will  not  lie  in  favor  of  one  co-tenant 
against  a  co-tenant,  81,  ^\ 

when  co-tenant  of  chattel  may  bring  against  co-tenant,  81, 
^S  et  seq. 

for  convarsion  of  trees  in  another  State  lies,  38,  ^  et  seq. 

for  joint  conversion,  effect  of  compromise  with  co-defend- 
ant, 9,  ^e. 

when  action  will  proceed  against  defendant,  although  dis- 
charged in  insolvency,  55,  ^**. 

who  may  maintain    for  property  of  estate  of  decedent, 
72,  J",  li.  I     i      J 

will  lie  against  infant  when  proper  remedy,  59,  ^~. 

when  action  for  brought  in  name  of  receiver,  when  not,  52,  ^. 

conversion  ot  property  of  wife,  who  mav  sue  for,  65,  ^'. 

pleading,  wlien  cannot  be  amended,  38. "«. 
Trust  daed,  when  assignee  may  intervene  in  suit  upon,  110,  27. 

trustee  must  account  to  trustor,  33,  ^^. 


INDEX.  521 

Trust  Deed— Continued. 

paid  bv  one  grantor,  suit  to  adjust  equities,  necessary  par- 
ties,'§  23,  'iK 
when  trustee  not  indispensable  party  to  suit  to  enforce  pro- 

yisions  of,  23,  ^^. 
of  suit  to  reform,  when  wife  need  not  be  party,  69,  ^^. 
bill  to  restrain  sale  under,  trustor  should  be' party,  28,  =". 
suit  to  set  aside  necessary  parties,  26,  ■^'■^,  et  seq. 
suit  to  set  aside  by  creditor,  when  trustee  may  be  sued 

alone,  33,  '^. 
Trust,   created  by  decedent  when  administrator  may  sue  to 

enforce,  73/ 
bill  to  enforce,  who  not  necessary  parties  to,  23,  ''. 
suit   to  declare,  when  administrator  of  estate  of  heir  of 

deceased  partner  is  proper  party,  k5,  ". 
resulting,  itceiver  may  not  sue  to  enforce  of  judgment 

debtor,  32,  i-'. 
resulting,   in    favor  of  judgment    debtor,   creditor    may 

enforce,  52,  ^^. 
implied  in  land,  suit  to  establish,  necessary  parties,  23,  ^\ 
implied,  who  joined  as  defendant  in  suit  to  establish,  99,  '. 
when  Cfi^tui  may  enforce  purchase  of  lands,  33.  --*. 
action  to  establish,   surety    against    co-surety,    who    not 

necessary  party,  23,  ^*. 
suit  to  enforce, 'trustee  failing  to  comply  with  statutory 

requirements  as  to,  efi'ect,  23,  '^^. 
estate,  death  of  joint  trustee  vests  in  survivor,  23,  ^\ 
estate,  cestui  generally  necessary  party  in  suits  relating  to, 

23,  1,  et  seg. 
funds,  when  cestuis,  must  be  parties  to  suits  relating  to, 

21,  i^ 
fund,  bill  against  officers  of  corporation  to  prevent  its  mis- 
appropriation, latter  party  to,  91,  i-'. 
funds,  who  may  sue  for  possession  of,  32,  i",  et  seq. 
funds,  when  trustee  may  sue  alone  in  suits  relating  to,  32,  ^. 
funds,  when  assignee  of  estate  of  bankrupt  mav  not  sue  for, 

3i,  25. 
funds,  joint  trustee  answerable  for,  33,  ^^. 
funds,  when  trustee  personally  liable  for  loss,  33,  ^,  et  seq. 
funds,  suit  for  against  trustee,  when  joint,  when  several 

action,  33,  '^i, 
funds,  trustee  must  account  to  cestui  for,  S3,  i". 
funds,  executor  of  deceased  trustee  of,  accounting  necessary 

parties,  23,  ^. 
fund,  suit  for  account  of,  what  creditors  necessary  parties 

to,  23,  -'^. 
fund,  unc>'rtain,  who  necessary  parties  to  suit  for  account, 

deceased  trustee,  23,  ^a. 


522  INDEX. 

Trust  —  Continued. 

funds,  devised  to  use  of  bankrupt,  suit  bv  creditor  to  reach, 

necessarj-  parties,  ^  23,  ^*. 
funds,   spJcitlcally  devised,   suit  to  recover  of  executor, 

necessary  party,  23,  ^^ 
funds,   wlien  judgment  debtor  may  be  bound  by  suit  to 

reach,  5,  ^'^. 
premises  conveyed  by  debtor  to  sureties  to  pi-otect,  neces- 
sary parties  to  suit  by  creditor  to  sell,  etc.,  23,  '^\ 
property,  suit  to  recover,  when  heirs  of   deceased  cestui 

necessary  parties,  23,  ^^. 
property,  suit  relating  to,  against  trustee,  statute  of  limita- 
tions,' 33,  ^^,  et  seq. 
property,   may  trustee  of  express  trust  be  sued  alone  in 

action  relating  to,  33,  ^. 
subject-matter  of  in  dispute,  all  trustees   made   parties, 

23,'. 
on  death  of  co-administrator  or  co-executor,  trust  survives 

to  others,  71,  ^'^. 
testamentary,  when  heir  may  contest  exf  cutiou  of,  78,  '. 
trustee  dead"  or  refuse  to  act,  practice,  32,  -'. 
Trustee,   appointed,   pending  suit  for  an  account,    properly 

made  party,  23,  *». 
suit  against' for  an  account,  creditors  payable  in  classes, 

necessary  parties,  23,  ^o,  et  seq. 
ceMni  que  'tra<t,  general  rule,  necessary  party  to  suit  by  or 

against,  23.  ^,  et  seq. 
application  for  instructions,  cestnis  numerous,   when  not 

all  necessary  parties,  23,  ■». 
and  cestnis  generally  joined  as  defendants  in  suit  to  enforce 

trust.  33,  ^. 
madj  defendant  in  suit  by  cestui  to  enforce  trust  for  pur- 
chase of  lands,  33,  '^'^. 
contracting  in  own  name  for  undisclosed  cestuis,  is  liable 

alone,  85,  ^'^. 
for  benefit  of  creditor's  suit  by  to  subject  lands  of  debtor  to 

payment  of  his  debts,  26,  ^",'  et  seq. 
necessary  parties,  to  injunction  to  prevent  sale  of  property 

by,  28,  a' . 
for  benefit  of  creditors,  liable  for  one  final  account,  partie" 

33,  1^  et  seq. 
in  trust  deed,  must  account  to  trustor,  33.  '«. 
when  not  indispensable  party  to  suit  to  enforce  provisions 

of  trust  deed,  23,  i«. 
not   necessary  partv  to    suit  to   adjust  equities,   several 

grantors  ot  trust  deed,  23,  ^*. 
must  be  party  to  suit  to  set  aside  deed  bv  deceased  husband 

to,  for  benefit  of  wife,  33,  **. 


INDEX.  523 

Trustee  —  Continued. 

when  may  be  sued  without  joining  cestui,  in  suit  to  set 

aside  trust  deed,  §  33,  ^. 
dead  or  refuse  to  act,  practice,  32,  '^2,  et  seq. 
death,  removal  of  pending  suit,  practice,  32,  '''^. 
deceased,  when  heu's  of  not  necessary  parties  to  suit,  23,  ^^ 
death  of,  pending  suit,  action  revived  in  name  of  executor, 

32,  '^i. 

suit  against,  fraudulent  breach  of  trust,  exception  to  rule, 

parties,  33,  "•. 
suit  by,  in  relation  to  trust  funds,  cestui  necessary  party, 

23,  ^  et  seq. 
when  may  sue  alone  in  relation  to  trust  funds,  32,  ^,  et  seq. 
when  may  sue  alone  for  possession  of  trust  funds.  32,  '^. 
when  personally  liable  fur  loss  to  trust  estate,  33,  ^,  el  seq. 
must  account  to  cestui,  for  trust  funds.  33,  ''. 
suit  against,  for  trust  funds,  when  cestui  mav  sue  for  alone, 

33,  21. 

suit  against,  for  trust  funds,  when  cestuis  sue  jointly,  33.  '^K 
of  hospital  of  insane,  when  mav  be  sued  to  determine  title 

to  lands  held  by  them,  33,  *. 
when  guardian  not  held  as.  land  purchased  with  funds  of 

infant,  57,  '^». 
must  be  partv  to  suit  to  divest  interest  of  minor  cestui  in 

land,  23.  -K' 
when  should  be  partv  to  suit  to  enforce  contract  to  convev 

lands,  26,  i^. 
may  sue  for  trespasses  upon  land  when  title  is  in  his  name, 

32,  !•,  et  seq. 

when  cannot  maintain  interpleader  against  two  towns,  32,  ^^. 

when  may  file  interpleader,  114,  ^'^. 

naked,  plaintiff  in  interpleader,  113,  3. 

when  may  not  file  bill  in  nature  of  interpleader.  114,  ^i. 

who  may'intervene  to  prevent  appointment  of,  110,  •^. 

joint,  action  relating  to  estate  must  join,  32,  ^''. 

joint,  both  liable  for  ti'ust  funds,  33,  ^^ 

joint,  death  of  one  estate  vests  in  survivor,  23,  ^. 

^oint,  death  of  one  survivor  sues,  32,  ^". 

joint,  representative  of  deceased  and  survivor  joined,  when, 

33,  8. 

when  mav  not  avail  himself  of  bar  of  statute  of  limita- 
tions. 33.  '«.  et  seq. 

when  liable  to  action  for  money  had  and  received,  33.  ^2. 

may  foreclose  trust  mortgage  without  joining  cestui.  32,  '^. 

made  party  to  suit  by  cestui  to  foreclose  mortgage.  27,  ■^*. 

and  ce><tHi,  when  both  must  be  parties  to  suit  to  foreclose 
mortgage.  27,  '■^'^,  et  seq. ' 

mortgage  taken  by  partner  as,  sues  alone.  27,  ^"'. 


524  rsT)EX. 

Trustee  —  Continued. 

when  may  sue  alone  to  redeem  mortgage,  ?  32,  i«. 

when  mortgagee  is,  cestui  should  be  party  to  bill  to  redeem, 
28,  11. 

executor  of  deceased,  appointment  of  new,  necessary  par- 
ties, 23,  a,  et  seq. 

new,  bill  for  appointment  of,  necessary  parties  to,  23,  '^^. 

naked,  action  against,  relating  to  trust  property  cestui 
should  be  joined,  33,  ^,  et  seq. 

proper  pirty  to  enforce  payment  of  notes  held  for  payment 
of  debts,  23,  ^'K 

assignor  of  unnegotiable  note  is,  necessary  party  to  suit  to 
collect,  23,  i«. 

purchaser  of  non-negotiable  chose  from,  may  sue  in  name 
of,  32,  \ 

conveyance  of  partnership  property  to,  suit  to  set  aside, 
necessary  parties  25,  ^'^. 

should  be  parties  to  suit  relating  to  trust  property,  23,  ^. 

ot  piopsrtv  for  use  of  husband,  when  necessary  party  to 
bill  lor  divorce,  23,  s^". 

of  separate  property  of  wife,  party  to  suits  relating  to, 
21,  1'. 

of  school  district,  suit  should  be  against  latter,  not  former 
individually,  46,  ^^. 

when  necessary  party  to  suit  by  surety  against  principal, 
23,  ai. 

failure  to  perform  certain  statutory  requirements,  effect, 
23,  2«. 

and  agents  of  unincorporated  association  mav  sue  alone  for 
benefit  of,  32,  J^. 

of  unincorporated  association,  when  may  sue  for  subscrip- 
tion, 92,  ^, 

of  unincorporated  town,  names  of  set  out,  suit  against,  46,  '^. 

of  village,  unlawful  acts  of  in  opening  street,  liability,  46,  ^'^. 

debts  of  wife  contracted  without  consent  of,  when  not 
liable  for.  68,  ^^ 

of  wife,  when  husband  may  sue  as  for  goods  equitably  be- 
longing to  wife,  66,  *. 

under  will,  liability  upon  building  contract  made  l«y,  33,  ^^. 
Trustee  of  express  trust,  meaning  as  use  in  Code,  31,  «. 

who  is,  32,  1. 

when  State  is  not,  cannot  maintain  action  on  bond,  39,  ". 

or  cestui  may  sue  upon  contract,  32,  i,  et  seq. 

either  or  real  party  in  interest  may  sue  upon  contract  for 
benefit  of  third  person,  37,  *. 

may  be  sued  alone,  in  action  relating  to  trust  property,  33,  *, 
Trustea  process,  receiver  appointed  for  corporation,  not  liable 
to,  91,  ^1. 


rN'DEX.  525 

Trustor,  in  trust  deed  may  compel  trustee  to  account,  ^  33,  ^^. 

should  be  party  to  bilfto  enj(jin  sale  under  trust  deed.  28,  o". 

■when  necessary  party  to  bill   lor  appointment    of    new 

trustee,  23,  ^«. 

Undertaking,  V)  secure  harmless  from  payment  of  judgment, 

■wlit-n  action  will  lie  before  paynunt!  94,  *. 
Unincorporatad  association,  suit  by 'and  against,  92. 
not  sued  by  name,  92,  '. 
becomes  incorporated  pending  action,  latter  may  not  be 

substituted  as  yjarty,  92,  •'. 
when  member  may  sue  others  for  contribution,  92,  *. 
when  may  sue  a  member  in  trover,  92,  ^. 
trustees  and  agents  of  may  sue  for.  82,  '-. 
when  trustees  of  may  sue  for  subscriptions.  92,  ^. 
Unincorporated  company,  cannot  sue  as  a  corporation.  92,  i. 

members  very  numerous,  how  may  sue,  92,  ^,  et  seq. 
Unincor ported  town,  how  sued,  46,  ^.  * 
United  States,  appearance  of.  how  enforced,  11,  i. 
cannot  be  sued  without  its  consent,  40,  ^  et  seq. 
liable  to  suit  in  court  of  claims,  when.  40,  *,  et  seq. 
exemption  from  suit  not  waived  by  plea  to  merits,  40.  3, 
when  becomes  party  to  action  bound  by  same  rules  as 

other  parties,  8.  ^Z 
recognized  as  party  plaintiff  when,  1,  ^^. 
patent  for  lands  issued  by,  who  institutes  suit  to  set  aside, 

48,  '\ 
exempt  from  process,  8,  ^. 
University,  State  cannot  be  sued,  40,  ^^,  ' 

Unlawful  detainer,  for  lands  of  infant  should  be  brought  in 

name  of  infant,  57,  ^". 
Unrecorded  instrument,    purchaser  of   mortgaged  premises, 

holding  by  need  not  be  party  to  foreclosure  suit.  7,  --. 
Use  and  occupation,  of  land,  when  devisee  may  sue  for,  78,  '-'-. 
tenant  liable  for  reasonable  compensation'for,  80,  ^^. 
when  tenants  in  common  may  maintain  a  joint  action  for 

rent,  82.  •'■■^. 
when  a  several  action,  82,  ^3. 
right  of  action  for  is  in  surviving  tenant,  82,  3". 
Usury,  action  to  recover  statutory  penalty  when  several,  95,  ^. 
Variance,  in  name  of  corporation  in  suit  against,  91, ",  et  seq. 
"Vendee,  does  not  become  party  to  a  suit  by  reason  of  purchase 
of  the  interest  of  a  party,  1,  -'^. 
when  need  not  be  partj'  to  suit  to  enforce  lien  for  purchase 
price  of  land.  27,  ''.  * 
Vendor,  when  not  necessary  party  to  suit  for  partition,  28,  ^^. 
Vendor's  lien.     See  Lien,  'Vexdoes  ;  Lands. 

atlministrator  of  vendor,  action  to  enforce,  heirs  of  vendor 
parties,  27,  '. 


526  '  INDEX. 

Vendor's  Lien—  Continued. 

upon  land,  action  to  enforce,  mere  agent  need  not  be  party, 

^  27,  J-', 
suit  to  enforce  against  estate  of  vendee,  proper  party,  27,  ". 
upon  land,  action  to  enforce  by  insolvent  vendor,  when 

adverse  claimant  of  title  made  party,  27,  ^^ 
several  notes  given  for  price   of  land,  suit  to  enforce  by 

holder  of  one,  necessary  parties,  27,  •*. 
for  purchase  i)rice  of  land  suit  to  enforce,  27,  2,  et  seq. 
for  purchase  price  of  land  encumbrancers  proper  parties, 

27,  1". 
purchase  price  of  land,  suit  by  survivor  of  joint  vendors, 

necessary  parties,  27,  ^,  et  .seq. 
purchase  price  of  land,  survivor  of  joint  vendors,  necessary 

parties,  27,  ^,  et  seq. 
for  purchase  price  of  land,  action  to  enforce,  purchasers 

from  vendee  made  parties,  27,  **. 
action  to  enforce  for  purchase  price  of  land,  when  vendee 

need  not  be  party,  27,  **. 
action  to  enforce  for  purchase  price  of  land,  lieirs  of  vendee 

parties,  27,  '^. 
suit  against  purchaser  of  vendee  to  enforce,  necessary  par- 
ties, 27,  3. 
Venue,  change  of,  consent  of  defendants,  rule  in  equity,  9,  ^e. 
of  action  at  law,  one  defendant  may  not  change  without 
_  consent  of  co-defendants,  9,  '^^. 
Verdict,  for  defendant  when  contrarj!-  to  law,  89.  ^^. 

infant  suing  alone,  irregularity  cured  by,  57,  \  et  seq. 
right  of  action   for  malicious" prosecution  not  assignable 

even  after,  38,  J^. 
against  partners,  when  sued  jointly  how  rendered,  89,  3. 
Vessel,  joint  owners  of  should  sue  jointly  for  freight,  81,  ^. 
when  joint  owners  of,  need  not  all  unite  on  action  for 

freight.  81,  1". 
under  contract  of  mateship,  no  joint  action  for  conversion 

of  a  whale  taken  by  one,  95,  *. 
part  owner  liable  to  co-owner  for  failure  to  procure  insur- 
ance upon,  81,  ^*. 
contract  for  construction  of,  one  party  may  sue  another 

party  to  for  breach,  even  though  they  were  to  be  tenants 

in  common,  81,  '^K 
joint  owner  recover  damages  against  co-owner  for  inter- 
rupting voyage,  81,  1^. 
part  owner  liable  for  materials  furnished,  81,  22,  ^3. 
Village,  liability  to  owner  of  lot  adjoining  street  for  change  of 

grade  (Ohio).  46,  1*. 
incorporated,  distinction  between  liability  for  non-repair 

of  streets  and  that  of  town,  46,  ^'■^. 


Village  —  Contmited. 

liable  tor  unlawful  acts  of  trustees  in  opening    street, 

>,  4G.  J''. 
Voluntary  association,  becomes  corporation  after  suit  brought 

no  substitution  of  parties,  106,  ^^. 
Voyage,  when  co-owner  of  vessel  may  sue  joint  owner  for 

interrupting,  81:  '^. 
Wages,  when  courts  of  admiralty  permit  infants  to  sue  alone 

for,  57.  3. 
relinquishment  of  right  to,  l)y  father  inferred,  5G,  i. 
Waiver,  appearance  of  non-i-esident  is,  of  jurisdiction  over  his 

person,  16,  ^^ 
cause  irregularly  sent  from  inferior   to  superior  court, 

when  appearance  is,  16,  '-'. 
voluntary  appearance  of  defendant  is,  of  defects  in  process, 

16,  1,  et  seq. 
general  appearance  is,  of  objections  to,  16,  ^,  et  seq. 
when  general  appearance  is  not,  of,  16,  '. 
of  special  appearance,  contesting  subsequent  proceedings 

is  not,  16,  **. 
coverture,  objection  to  disability  to  sue,  63,  ^,  et  seq. 
defendants  non-joinder  of,  in  action  upon  contract,  103,  ^-. 
defendant  may,  to  all  methods  of  bringing  into  court,  11,  '^. 
plea  to  merits  is  not,  of  right  of  exemption  of  United 

States  from  suit,  40,  **. 
what  is,  of  objection  for  misnomer,  3,  ^3. 
name  of  corporation  changed  pending  action,  objection 

when  too  late,  3,  -". 
surname  of  defendant  only  set  forth,  what  is,  3,  ^^. 
name  of  guardian  omitted  in  suit  by  insane  person,  what 

is,  61,  J", 
of  objection  to  capacity  in  which  party  is  sued,  what  is,  4,  ^•^. 
of  objection  to  position  of  party  on  record,  what  is,  6,  '. 
what  is,  of  objection  for  misjoinder  of  parties  plaintiff, 

100,  ^,  et  seq. 
non-joinder  of  plaintiffs,  what  is,  objection,  100,  '**. 
action  brought  in  name  of  firm  no"  plea  in  abatement  is, 

88,  1,  et  seq. 
personal  privilege,  what  is,  8,  ^^. 

service  of  process,  infant  defendant  none,  58,  ^  et  seq. 
of  service  in  intervention,  109.  ^. 

service  of  process  none  by  guardian  infant  defendant,  58,  ^. 
of  publication  by  counsel,  when  amounts  to  general  appear- 
ance, 14,  3. 
of  rights,  guardian  ad  litem  for  infant  defendant  cannot, 

rights.  58,  '■^'^. 
of  objection  of  omission  of  wife  to  sue  husband  bv  next 

friend,  67,  *, 


528  iXDEX. 

War,  certain  contracts  prohibited,  if  made  cannot  be  enforced, 
§  29,  1'. 
domestic,  abuse  of  beligerent  power,inquiry  into,  29,  ^•'. 
between  independent  powers,  abuse  of  beligerent  power, 
inquiry  into,  29,  i**. 
Ward.    See  'Guardian  ;  Guardian  Ad  Litem  ;  Next  Friend. 
suit  by,  against  guardian  for  an  account,  necessary  parties, 

24,  '",  et  seq. 
sureties  of  guardian  not  liable  for  board  of,  86,  ^-. 
presumption  as  to  jurisdiction  of  court  over,  10,  ^^. 
Warranty,  covenant  of,  when  co-partner.s  sue  jointly,  94,  ^^. 
pjrson  conveying  with  covenants  of,  liable  for  continuance 
of  nuisance,  30,  ^*. 
Waste,  tenant  in  common  may  sue  co-tenant  for,  82,  ^'^. 

writ  of,  injury  to  land  of  Vife,  husband  and  wife  join  in, 

G6,  ^f. 
prop -rty  of  corporation,  when  stockholder  may  sue  director 
for,  93,  1,  et  seq. 
Water,   diversion  from  mill,   tenants  in  common    may  sue 
jointly  for  injury,  82,  i". 
right  of' owner  of  land  to  use  water  course,  38,  '^,  et  seq. 
Water  course,  action  for  diverting  dies  with  jDlaintifi",  107,  ^^ 

rights  of  owner  of  lands  to,  38,  ^^  et  seq. 
Water  surface,  town  not  liable  for  failure  to  provide  drain  for, 

46,  »«. 
Water  works,  liability  of  city  for  negligent  use  of,  44,  i-*. 
Way,  appurtentnt  to  land  of  wife,  who  may  sue  for  obstruction, 
66,  '•^'■^,  et  seq. 
right  of,  action  for  obstructing,  death  of  wife,  when  did 
not  abate,  107,  ^'. 
Widow,  when  may  recover  damages  for  homicide  of  husband, 
78,  6. 
may  sue  for  dower,  purchaser  from  husband,  66,  *^. 
suit  for  dower,  marriage  of  pending,  husband  made  partv, 
66,  ^».  o        1  o  1       . 

suit  for  dower,  interests  in  lands,  necessary  parties,  26,  '^^. 

bill  to  enjoin  conveyance  of  dower,  interest,  capaeitv, 
28,  ^«.      ■ 

suit  by,  relating  to  homestead,  heir  proper  party,  26,  '^^. 

Avhen  party  tu  probate  proceeding,  1,  --. 

and  heirs,  final  settlement,  proceedings  to  set  aside,  neces- 
sary parties,  26,  '^K 

bill  to  redeem,  w^hen  may  make  purchaser  of  equity  of 
redemption,  party  to  suit,  28,  ^. 

of  vende3,  vendor's' lien  for  purchase  price  of  laud,  prop,  i 
party,  27,  ^ 

of  vendor  of  contract  for  sale  of  lands,  when  proper  partv^ 
to  suit  to  enforce,  26,  '. 


k 


529 


ie.    See  Husband  a>'d  Wife, 

general  rule,  she  cannot  sue  or  be  sued,  ?  63,  ",  f^-f  s<'<?. 
(Statute)  mav  sue  and  be  sued,  as  though  sole,  G8,  '',  et  seq, 
construction"  ot  statute  in  relation  to,  sue  and  be  sued, 

68,  >'. 
•what  is  sufficient  authorization  of  to  sue,  63.  J', 
permission  to  sue  alone,  when  right  presumed.  63,  "'. 
deserted  bv  husband  may  sue  alone,  64,  '.  63,  ''. 
mav  sue  alone  in  equity,'  husband  may  join.  66,  =>,  et  f^eq. 
interests  ot  husband  conflict,  may  sue  alone  and  make  him 

detendant,  66.  '^. 
when  may  sue  alone  for  malicious  prosecution  of,  65,  ^^. 
cannot  be  sued  without  authorization  (Code),  69,  \  ei  seq. 
as  executrix,  may  be  sued  by  husband.  67.  **. 
non-resident  may  appeal,  authorization,  69,  ■^. 
general  rule,  answer  with  husband  when  sued  jointly  in 

equity.  (-^9.  ^. 
mav  answer  separately  in  equity  when,  69,  ^. 
boiid  by   husband   and,   made    during    coverture,    action 

against  both,  dismissed  as  to,  68,  ^". 
contract  to,  when  sole,  she  must  join  in  action  upon,  64,   ^ 
contract  tc,  during  coverture',  husband  .?ues  alone  or  jointly 

with.  64.  3.  t't  seq. 
contract,  to  pav  to  husband  or  to  longest  liver,  survives  to, 

64.  i^ 

contract  of  to  release  husband  from  jail  binding  upon  lier 

property,  68,  =*^. 
coverture  good  defense  to  contract  of.  68.  ^^. 
conversion  of  the  property  of.  who  may  sue,  65,  ^',  et  seq. 
conversion,  she  cannot  sue  for.  65.  •^^. 
propertv  of.  conversion  before  marriage,  husband  and.  sue, 

65,  ■-'.' 

property   of.   conversion    after    marriage,   husband    sues 

alone^  65,  ^'•. 
fraudulent  conveyances  of  husband  and,  suit  to  set  aside, 

she  sliould  be  party  to,  69,  "^. 
when  claim  no  indulgence  from  coverture.  69,  ^. 
death  of  before  suit  does  not  defeat  right  of  action  for 

ciim.  con.,  65,  2^. 
death  of  pending  action  for  injury  to,  by  husband  and, 

caused  abatement.  65.  '•^. 
statute,    death   of   pending  action    by  husband  and.    for 

injury  revived  by  her  administrator,  65,  ^*. 
death  of.  in  action  by  husband  and,  upon  debt  of.  effect, 

63,  J",  et  seq. 
debauching,  when  right  of  action  complete.  65.  -*". 
anti-nuptial  debts  of  husband  and,  jointly  sued  for,  68,  '. 
liable  alone  for  anti-nuptial  debts  (Code)",  68.  •> 

P.\RTIES  -  45 


530  INDEX. 

Wife  —  Continued. 

discharge  in  banki'uptcy  good  defense  to  action  for  anti- 
nuptial  debt  of,  §  t)8,  ■^. 

action  npon  note  of  Inisband  and  wife  for  debt  of  former, 
dismissed  as  to,  68,  ^*. 

Avhen  nut  liable  for  debts  contracted  while  living  with  hus- 
band, 68,  '^'^,  et  seq. 

when  express  promise  will  not  render  liable  for  debt 5, 
68,  ^fi. 

when  may  sue  alone  to  recover  distributive  share  of,  in 
estate  of  decedent,  66,  •^■'. 

distributive  share  of,  in  estate  of  decedent,  when  suit  for  in 
name  of  huslmnd  and,  66,  ^^,  et  seq. 

when  may  join  third  person  as  defendant  with  husband  in 
suit  for  divorce,  67,  ^". 

liable  for  fees  of  attorney  in  suit  by  her  for  divorce,  68,  3». 

after  divorce,  may  sue  husband  for  money  borrowed  dur- 
ing coverture,  67,  ^i. 

husband  may  sue  after  divorce  for  improvements,  67,  ^2. 

claiming  dower  interest  in  lands,  should  be  parties  to  suit 
fi)r  partition,  28,  ^^  et  seq. 

when  remitted  to  right  of  dower,  wljen  lands  devised 
to  debts,  78,  i'. 

earnings  of,  when  she  may  sue  alone  for,  64.  **. 

no  action  for  enticing  away  husband  of,  65,  --. 

enticing  away,  husband  has  right  of  action,  65,  -^,  et  seq. 

extending  ordinary  hospitality  to,  is  not  enticing  away, 
65,  ^^  et  seq. 

enticing  away,  when  can  be  no  recovery  in  action  for,  65,  2«. 

funeral  expenses  of,  husband  liable  for,  68,  -^ 

goods  equitably  belonging  to,  when  husband  may  sue 
trustee,  66,  •*. 

no  action  against  husband,  at  law,  unless,  67,  ^ 

may  sue  husband  or  converse  in  equity,  when,  67,  -,  et  seq. 

when  may  sue  husband  upon  note  made  before  marriage, 
67,  ^ 

when  cause  of  action  would  survive  to,  must  be  joined  in 
action,  63,  -K 

husband  ostensible  agent  of,  when  she  cannot  be  sued  as 
principal,  68,  ''^. 

acts  of,  when  no  action  lies  against  husband  for,  70,  •'. 

Avhen  made  defendant  in  suit  by  husband,  63,  '. 

necessary  party  to  suit  to  restrain  action  against  husband 
and,  28,  ■"'. 

suit  to  subject  distributive  share  of,  to  pavment  of  debts  of 
husband,  party,  22  -^ 

husi^and.  when  violates  rights  of.  action  necessarv,  he 
properly  made  elefendant,  60,  '. 


INDEX.  5C1 

Wife  —  Continued. 

action  upon  joint  note  of  self  £.nd  husband,  may  waive 

what  errors,  §  69,  ^r  et  seq. 
infant  sues  with  reference  to  her  separate  proi)erty,  by 

guardian  ad  litem  or  next  friend,  56,  ^'-K 
iufant,  when  next  friend  may  not  sue  in  name  of,  56,  i*. 
action  for  injuries,  when  may  sue  by  next  friend  (Md. ) .  65, 3, 
statute,  mav  recover  for  injuries  to  person  or  character  as 

if  sole,  6.1  ^^. 
injuries  either  to  person  or  property,  husband  and,  join  for 

damages.  65,  ^  et  seq. 
special  damage  resulting  to  husband  from  injury  to,  he 

may  recover,  65.  ^K 
injury  to  person,  action  accrued  to  husband  and,  65,  **. 
injury  to.  action  for  loss  of  ser"\T.ce,  etc.,  accrued  to  hus- 
band, 65,  '. 
administrator  of,  mav  sue  alone   for  iujurv  causing  her 

death.  65,  ^\ 
proper  party  to  all  suits  relating  to  homestead,  26,  3'. 
may  intHrvene  in  suits  relating  to  homestead,  110,  ^'. 
suits  relating  to  lands  of,  husband  not  obliged  to  uiiite  in, 

66,  l^  et  seq. 
may  sue  alone  to  enforce  contract  to  convey  lands  to.  66,  ^'. 
lands  of,  ejectment  for,  husband  properly 'joined  with  her 

in  suit  to  recover,  66,  ^^,  et  seq. 
may  bring  ejectment  even  against  husband,  when,  66.  '*^. 
may  prosecute  alone,  writ  (>i  entry  for  lands  ol.  when,  66,  ^^. 
when  mav  sue  alone  for  injurv  to  possession  ot  her  lauds, 

66,  -'".  ' 
injury  to  possession  of  lands,  when  husband  died  mav  sue 

jointly,  66,  -«. 
dies  pending  action  by  husband  and,  for  injury  to  her  land, 

action  survives  to  his,  66.  •*-'. 
does  not.,become  party  to  action  by  joining  husband  in 

motion,  sale  of  homestead,  1.  -'-•. 
lands  of,  for  an  injurv  to  the  reversion,  she  must  sue  alone 

66,  -'«. 
rights  of  action  relating  to  homestead,  after  death  of  hus- 
band, 66,  ■>'. 
may  sue  either  alone  or  jointly  with  husband  to  recover 

purchase  price,  66,  ">=. 
debt  of  husband,  when  she  cannot  compel  payment  to  her- 
self of  full  purchase  price  of  land,  66,  ■*'-. 
when  necessaiy  partv  to  suit  for  funds  arising  from  sale  ot 

lands.  21,  -'\ 
when  may  sue  for  rent  of  her  land.  66,  ^-,  el  seq. 
lands  of.  husband  and  wife  mav  sue  for  trespasses  upon, 

66,  -'^.  et  seq. 


532  INDEX. 

Wife—  Continued. 

eitliei  husbaiicl  and,  or  husband  Rlone  may  sue  for  obstruc- 
tion ot  way  to  her  laud,  ^  66.  •^■\  et  seq. ' 
separate  estate,  ejectment  against,  she  sued  alone,  09.  --. 
ejectment  against    husband   and,    lands  claimed  by  her, 

death  of  husband  pending  appeal,  effect,  69,  '^K 
lands,  ejectment   by  purehas..^r  of  husband's  interest  in, 

necessary  parties,  2(5,  =". 
must  be  party  to  suit  by  purchaser  to,  dispossess  husband 

from  her  lands,  2G,  '■^'^. 
when  husband  joined  with  in  action  against  for  forcible 

entry  and  detainer,  69,  '^•^. 
specific  performance  of  contract  to  convey  her  lands,  when 

will  not  be  enforced,  69,  ^'^. 
should  be  made  defendant  in  statutory  proceedings  for  sale 

ot  her  lands,  69,  ^^. 
when  may  intervene  in  suit  to  quiet  title,  110,  ^^. 
made  defendant  in  bill  by  husband  to  impeach  marriage 

agreement,  64,  ■*. 
may  become  liable  for  medical  services  rendered  familv, 

68,  ■^a. 
contract  of  husband   and,  to  execute  mortgage  will  be 

enforced,  69,  ^'•^. 
must  be  party  to  suit  to  foreclose  homestead  right,  27,  2t>, 
when  made  defendant  in  foreclosure   suit,  69,  ^*,  et  sea., 

27,    27. 

of  mortgagor,  when  not  necessary  part>'  to  suit  of  fore- 
closure, 27,  25. 

when  prosecute  writ  of  error,  to  reverse  decree  of  foreclos- 
ure, 69,  1^ 

may  not  be  sued  alone  after  death  of  husband  for  neces- 
saries furnished  before,  68,  '^''. 

desertfd  l)y  husband  latter  is  liable  for  necessaries,  68,  '^*. 

when  husband  not  liable  for  necessaries  furnished,  68,  36. 

dangerous  woman,  no  defense,  action  for  necessaries 
against  husband.  68,  •^. 

jointly  and  severally  liable  with  husband  for  expenses  of 
family,  68,  i^,  r/  st^q. 

liability  for  family  supplies  (Iowa),  68,  i^. 

liable  for  plantation  supplies  when,  68,  i^. 

bill  by,  when  husband  must  be  next  friend,  63,  i^. 

must  sue  by  next  friend,  in  equity  suit  against  husband, 
67,  -^ 

omission  to  sue  husband,  by  next  friend  when  waiver, 
67,  \ 

property  of,  see  Separate  Pkopekty  of. 

2)roperty  of,  levied  upon  by  creditors  of  husband,  suit  for 
by  husband  and  wife,  66,"  **. 


INDEX.  533 

Wife  —  Continued. 

not  necessary  partv  to  suit  relating  to  common  property, 
i  21,  -^K 

carrying  on  separate  business,   when  cannot  plead  non- 
joinder ot  husband,  68,  ^'. 

carrying  on  separate  business,  statute,  husband  not  liable 
for  debts,  68.  ^^, 

may  sue  iu  relation  to  separate  property  alone,  66.  '.  et  seQ. 

husband  is  proper  party  in  suits  relating  to  separate  prop- 
erty of.  21.  1**. 

suit  of  relating  to  separate  propjrty,  she  may  sue  alone  or 
unite  with  husband,  66,  -K 

suit  in  equity  by,  relating  to  separate  property,  husband 
proper  defe'ndant,  21,  ^^.  et  seq. 

money  of,  separate  property,  fraudulently  loaned  by  hus- 
band, she  may  recoyer,  65,  •*'^. 

bill  to  restain  aale  of  separate  property  of  for  debts  of  hus- 
band, necessaiy  party,  28,  ■"*. 

suit  for  separatio'n  of  property  insolyency  of  husband  must 
be  established,  67,  ^. 

cannot  maintain  repleyin  for- goods  when,  6.5.  *». 

cannot  maintain  repleyin  against  husband.  67,  •'. 

slander  of  husband  cannot  recoyer  in  action  alone  unless, 
65.  i«. 

slander  to,  action  in  name  of  husband  and,  65,  '^  et  seq. 

slander  of,  when  she  may  sue  alone.  65,  ''^. 

for  tort  to.  two  actions  al  common  law,  65.  ",  et  seq. 

deserted  by  husband,  sues  alone  lor  tort.  65,  -. 

tort  of  before  marriage,  when  husband  and.  liable,  70.  **. 

torts  of,  during  coyerture,  rule  as  to  liability  of  husband 
modified,  70,  •>. 

tort  ot.  when  husband  properly  made  defendant  in  action 
for,  70.  ',  et  seq. 

fraud  changes  rule  of  liability  for  tort  of.  70,  *. 

liability  of  husband  for  torts'of.  70.  ^  et  ."eq. 

may  not  recoyer  for  assault  by  husband  committed  during 
coyerture,  67,  '. 
I  cannot  sue  husband  for  tort  after  divorce  committed  during 

coyerture,  65.  *-. 

not  liable  for  tort  or  fraud  of  husband  unless,  70,  '',  el  seq. 

when  need  not  be  party  to  reform  deed  of  trust,  69,  '^. 
Will,  discovery  of.  effect  on  pending  suit  by  administrator,  71,  ^ 

executor  proper  person  to  conduct  the  litigation  of,  caveat 
of,  71,  ^ 

suit  to  obtain  construction  of,  who  made  parties,  22.  '. 

child  pretermitted  in.  may  recover  amount  entitled  to.  56.  *. 

Lwhen  devisee  mav  bring  ejectment  on,  78,  ^^\ 


53i  INDEX. 

Y^ill  —  Cordinued. 

proiert  not  requirea,  executor  may  commence  action  before 

probate  of,  |  71,  ^ 
bill  to  set  aside,  who  necessary  parties,  22.  -.  et  seq. 
administration  of  trusts  in,  interpleader,  113,  ^*. 
suit  to  enforce  trusts  created  by,  parties,  22,  *, 
trustee  under,  when  cannot  maintain  interpleader  to  see 
where  he  will  be  taxed,  32,  ^^. 
■Wisconsin,  rule  in,  who  may  sue,  contract  under  seal  for  bene- 

lit  of  third  person,  37,  ",  et  seq. 
Withdrawal  of  appearance,  effect.  17.  *.  et  seq. 
matter  of  discretion  of  court,  17,  S  et  seq. 
may  be  in  appellate  court,  17,  ^. 
Witness,  may  not  recover  for  injuries  received  through  defects 

in  court-house,  42,  i**. 
Words,  what  used  to  describe  a  party,  4,  ^,  et  seq. 
Work,  contract  for.  when  joint,  94,  '**,  et  seq. 
Writ  of  entry,  lands  of  infant,  how  brought,  (Mass.).  57,  «. 
Writ  of  error,  appeal  in  nature  of,  judgment  suspended,  108,  2. 
by  husband  and  Avife,  when  death  of  wife  abates,  108,  ^'. 
judgment  against  several,  death  of  one,  survivor  may  pros- 
ecute, 108,  i«. 
judgment  against  several,  all  must  prosecute,  108.  ^^,  etseq. 
Writ  of  right,  death  cf  sole  tenant  in,  action  abates,  107,  *^. 
Written  instrument,  when  principal  bound  bv,  executed  by 

agent,  85,  i". 
Wrong,   flowing  from  breach  of  contract  when  plaintiff  may 

not  recover  for,  91,  '^^. 
Wrong-doer,  injury  to  possession  of  land,  person  without  title 
may  maintain  action,  79,  1. 
when  insurance  company  may  sue  for  loss  occasioned  by, 

release  of  one  joint,  effect,  98,  ^. 


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